Federal Court in Florida Rules that a Grocery Store Must Make its Website Accessible

Our retail and hospitality clients often ask whether the Americans with Disabilities Act (“ADA”) requires their websites to be accessible for individuals with disabilities.  Unfortunately, as we have previously explained, there are numerous reasons why there is no clear answer to this question:  Website Accessiblity

  • While Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute does not explicitly define whether a place of public accommodation must be a physical place or facility;
  • These types of issues historically have arisen in brick-and-mortar buildings such as lack of accessible parking stalls, insufficient ramps, and inaccessible bathrooms;
  • No regulations on the issue of website accessibility currently exist, and the Department of Justice (“DOJ”) has pushed back the date on which it is supposed to issue such regulations until 2018 at the earliest;
  • The DOJ has emphasized that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards developed by the World Wide Web Consortium known as the Web Content Accessibility Guidelines (“WCAG”);
  • Very few cases have reached a resolution on the merits.

As a result, the state of the law regarding the applicability of the ADA to company websites has been in flux the last several years.  However, we now are starting to see some guidance from the courts, although there have been contrasting decisions that have not exactly clarified matters.

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EEOC Expands Permissible Wellness Program Incentives Under GINA

On October 30, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Proposed Rulemaking to amend regulations implementing Title II of the Genetic Information Non-Discrimination Act (“GINA”) as they relate to wellness programs offered through a group health plan.  With this new rule, the EEOC intends to broaden the use of incentives to encourage voluntary participation in employer-sponsored wellness programs under group health plans.  Specifically, the EEOC clarifies that an employer can offer a limited incentive to an employee’s spouse if the spouse (1) is covered by the employee’s health plan; (2) receives EEOC NPRM for GINAhealth or genetic services offered by the employer, including as part of a wellness program; and (3) provides information about his or her current health status.  Such information is often provided through a health risk assessment.

GINA prohibits an employer from using an employee’s or applicant’s genetic information in making employment decisions.  Thus, an employer is prohibited from requesting genetic information from an employee unless the employee voluntarily accepts health or genetic services, including those offered as part of a wellness program.  Even under this exception, however, current regulations restrict wellness programs from requiring employees to provide genetic information in order to receive an incentive.  The proposed rule makes clear that this restriction does not apply to an employee’s spouse because there is a minimal chance that an employer could obtain information about an employee’s genetic make-up from the current or past health status of an employee’s spouse.  For this reason, the proposed rule is limited to incentives for information about an employee’s spouse and does not include an incentive for current or past health status of an employee’s child as the EEOC believes that information could provide insight into the genetic make-up or predisposition of an employee.

Similar to other laws regulating incentives connected to wellness program participation, incentives permitted under GINA would not be allowed to exceed 30% of the total cost of coverage for the health plan.  Therefore, the total incentive for an employee and spouse to participate in the wellness program, together, may not exceed 30%.  For instance, the EEOC explains that if the total cost of coverage is $14,000.00, the incentive offered for providing information on current or past health status could be no more than $4,200.00 total for both an employee and his or her spouse.  Furthermore, the portion of the incentive attributable to the employee, alone, cannot be more than 30% of the cost of self-only coverage.  The proposed rule allows for a reward or penalty and the incentive can be financial or “in-kind” (i.e., time-off awards, prizes, or other items of value not to exceed 30% of the cost of coverage).  To participate, the spouse would have to provide knowing, written, and voluntary authorization for the employer to collect genetic information, just like an employee.

This proposed rule appears to be part of the EEOC’s continued effort over the last year to clarify the impact of federal statutes regulating health-related discrimination on wellness programs permitted and promoted under the Affordable Care Act.  For instance, as we discussed in a prior post, the EEOC put out a proposed rule to address the Americans with Disabilities Act’s (“ADA”) impact on employer wellness programs last April.  That rule clarifies when participation would be considered voluntary under the ADA and addresses incentives associated with participation.  Both of these proposed rules come amidst a recent upswing in litigation over wellness programs, with the EEOC pursuing claims against employers for violating non-discrimination laws for which it had yet to even provide clear guidance.

At this point, this is only a proposed rule and could potentially change based on comments received by the EEOC.  Employers currently have the opportunity to submit comments on the proposed rule until December 29, 2015.  Although the proposed rule is not yet controlling and could be altered, employers should continue to take proactive steps to ensure a compliant wellness program based on current regulations and the requirements likely to come down the pipeline.  The ability to offer incentives for spouse’s to provide current and past health status information could benefit employers as they are continuing to look for ways to cut health care costs, as long as those incentives are compliant and the program is implemented in a manner that meets GINA’s requirements.

Workplace Violence: No Longer Just a Police Issue — Webinar Recording

On Tuesday, November 10, 2015, Eric J. Conn and Kara M. Maciel delivered a webinar regarding “Workplace Violence: No Longer Just a Police Issue.”

Every year, approximately 10% of workplace fatalities result from intentional violent acts.  The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence.  This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties.  Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts.  Beyond OSHA, workplace violence can also implicate other employment laws.  For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA.  Likewise, HR issues related background checks and negligent hiring could also contribute to civil liability.

Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices.  This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so.  It also provided employers with the knowledge and tools they need to develop a workplace violence prevention policy and training for employees to ensure they know what steps to take if an incident of workplace violence occurs.

Specific topics included:

  • OSHA’s enforcement philosophy about workplace violence and enforcement under the General Duty Clause;
  • When injuries that result from workplace violence must be reported to OSHA;
  • Reference checking, negligent hiring and supervision obligations to avoid liability to employees or third parties injured from workplace violence;
  • Employer obligations under the ADA, Title VII and state workers compensation laws; and
  • Recommendations for a compliant workplace violence prevention policy and employee training.

Here is a link to a recording of the webinar, which includes the full audio with slides.

Congress Introduces Legislation to Reduce ADA “Drive-by” Lawsuits

As many followers of this blog are aware, a significant portion of our practice focuses on defending businesses against lawsuits alleging violations Title III of the Americans with Disabilities Act (“ADA”), which prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, such as hotels, spas, stores, restaurants, and gyms.  Title III issues have become increasingly important the last few years with the substantial increase in the number “drive-by” plaintiffs, individuals who often allege violations and commence litigation against businesses without even stepping foot on their property.  Many of these plaintiffs have filed tens or even hundreds of such lawsuits in various states, costing employers substantial sums of money in both renovation costs and attorneys’ fees.

Accessible Parking Sign

As a result of these perceived abusive litigation tactics, Representatives Ted Poe (R-TX), Doug Collins (R-GA) and David Jolly (R-FL) recently introduced “The ADA Education and Reform Act of 2015.”  If signed into law, the bill would curb abusive ADA lawsuits by implementing clear, unambiguous rules for identifying and correcting ADA access violations prior to permitting a plaintiff to commence litigation.

Specifically, the measure would require a disabled individual who has encountered barriers to access to provide specific details about the purported denial of access, including the specific sections of the ADA that were violated and whether the barrier to access was temporary or permanent.  The bill also provides the employer with a cure period in which it would have the opportunity to set forth a written description of improvements to remove the barrier, and then implement the improvements.  If a business fails to correct an identified ADA violation during this cure period, then the aggrieved individual would still have right to seek legal recourse.

Notably, the bill also instructs the U.S. Judicial Conference, in conjunction with property owners and representatives of the disability rights community, to develop a model program to promote the use of alternative dispute resolution to resolve potential claims, with the purpose of alleviating costly litigation and/or lengthy, drawn-out settlement negotiations between the parties.

While employers would undoubtedly welcome the passage of the bill, as it would create disincentives for filing frivolous ADA lawsuits, it is unlikely that it will garner enough bi-partisan support to be enacted into law.  The simple introduction of this bill, however, is a positive sign for employers, and should, at the very least, increase general awareness regarding serial plaintiffs and abusive litigation practices.  We will keep you apprised of further developments as they become available.

Are Your Golf Courses Accessible to Guests with Disabilities:  How Does the ADA Apply to Your Club?

shutterstock_109624058Title III of the Americans with Disabilities Act (“ADA”) prohibits discrimination against individuals on the basis of disability with regard to their participation and “equal enjoyment” in places open to the public, or “places of public accommodation.”  Under this law, places of public accommodation, such as stores, restaurants, hotels and gyms, are required to make goods and services available to and usable by individuals with disabilities on an equal basis with members of the general public.

The U.S. Department of Justice has issued regulations to address specific requirements of the ADA. These requirements include detailed architectural requirements known as the ADA Standards for Accessible Design (“ADA Standards”), which are based on federal ADA Accessibility Guidelines (“ADAAG”).

The ADAAG address golf courses and other recreational facilities. These guidelines were developed to make certain activities such as golf are accessible to as many golfers as possible and not detract from the fundamental challenge and nature of the game. In short, the law requires golf courses to meet specific requirements so long as they are “readily achievable.”  If the requirements are not “readily achievable” a safe harbor exists for non- compliance. To be exempted under this readily achievable standard, a golf course would need to show that the cost of making its course accessible is beyond its financial means.

Golf Course Accessibility Requirements

  • Accessible Routes on the Golf Course: Golf courses must provide continuous, unobstructed pathways (of at least 48″ in width) to connect all areas within the boundaries of the golf course. This includes the bag drop area, parking lot, clubhouse and pro shop, practice facilities, actual golf course (tees, fairways, greens, and routes between holes), course toilet facilities, amenities (snack bar, halfway house), and weather shelters.

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Assessing the Health of Wellness Programs under EEOC Proposed Rule

WellnessOn the heels of its recent litigation against several companies for allegedly non-compliant wellness programs, the Equal Employment Opportunity Commission (“EEOC”) has finally promulgated a proposed rule to address a long-standing unknown for employers – how does one implement a wellness program that complies with the Americans with Disabilities Act (“ADA”)? The answer provided in its proposed rule as revealed on April 16, 2015, is still somewhat unclear and may change before the regulations become controlling law. But the rule does provide some guidance as to, at least, the EEOC’s interpretation of a voluntary, compliant wellness program. This is significant because the EEOC has been very active recently in prosecuting those employers it believes have instituted non-compliant programs.

In August and September of 2014, the EEOC filed two federal lawsuits against employers charging that the manner in which they implemented their wellness programs effectively compelled employee involvement because of the consequences for non-participation. Even more recently, the EEOC attempted to obtain an injunction to stop another employer from operating a wellness program that would penalize employees who did not participate in biometric testing, but the court refused to grant such a restraint. Now the EEOC looks to impact employer wellness programs through regulations. Principally, the proposed rule explains (1) when it will be applicable and why the ADA applies to wellness programs; and (2) when a wellness program will be considered voluntary and, thus, compliant.

Applicability of this Rule and the ADA to Wellness Programs

First, the EEOC establishes that wellness programs are covered by the ADA because they are included under the umbrella of employee health programs. Though the ADA usually prohibits employers from making disability-related inquiries or requesting medical examinations, there is an exception that allows voluntary medical examinations and inquiries as part of an employee health program.  Thus, such is permitted within a wellness program if participation is voluntary.

This interpretation from the EEOC dismisses court precedent set by the case Seff v. BrowardCounty, in which the Southern District of Florida determined that Continue reading