News that multiple cases of the newly-identified 2019 Novel Coronavirus have reached the United States have prompted employers to think about employee safety and ways to address disease prevention in the workplace. Although, according to the Occupational Safety and Health Administration (OSHA), “most American workers are not at significant risk of infection” at this time, the situation is evolving, and it is never too early for employers to consider how they can address employee concerns, help prevent an outbreak, or address one if it occurs. Employers should also be aware of legal pitfalls that they may encounter when attempting to protect their employees from the virus.
News of an outbreak of a new coronavirus first identified in Wuhan, Hubei Province, China raises issues for employers and employees about the appropriate workplace responses.
Reported cases are expanding quickly to other countries, including the U.S. The Centers for Disease Control and Prevention (CDC) maintains a list of locations with confirmed cases throughout the world. Both the CDC and the State Department have issued travel advisories, and the CDC asks everyone who traveled to Wuhan in the last 14 days and experiences symptoms to seek medical care immediately.
Many employers are seeking guidance on how best to respond to workplace concerns, especially those with employees engaged in international travel, as well as employers in the healthcare, airline, and border protection industries.
The Sixth Circuit will hear oral argument over whether a federal judge improperly threw out a former scrap yard worker’s disability bias lawsuit based on outdated legal standards that Congress amended more than a decade ago.
Jacqueline Harrison, with the backing of the Equal Employment Opportunity Commission, challenged a lower court ruling that her knee injury didn’t qualify as a disability under the Americans with Disabilities Act. Harrison sued Parts Galore and its corporate parent, Soave Enterprises, for allegedly failing to accommodate her injury and then firing her because of it. The companies argue that the district court was correct to toss her lawsuit.
The case highlights what legal scholars say is a widespread problem of the federal bench ignoring the impact of the ADA Amendments Act, a 2008 measure that broadened the class of people who qualify for legal protection based on their disabilities. Despite Congress expressly responding to rulings that had narrowed the definition of disability under the ADA, courts have misstated the law and wrongly applied pre-amendment precedent that is too narrow and no longer valid, scholars say.
Courts cited outdated precedent or the wrong law in approximately 13 percent of cases that addressed the definition of disability from the start of 2014 to the end of 2018, according to Nicole Buonocore Porter, a law professor at the University of Toledo. Porter reviewed nearly 1,000 cases decided during that time period, finding that courts erroneously ruled workers didn’t have disabilities in 210 of them.
“The problem is when courts get the law wrong, then other courts are going to rely on that,” Porter said. “Regardless if plaintiffs win on the merits, getting the law wrong on the definition of disability ends up having an impact on future cases.”
Haro Bicycle Corp. and a New York man have agreed to settle the man's lawsuit over the bike company's website.
Valentin Reid, who is legally blind, had charged that Haro violated the American Disabilities Act, saying one of its websites, ridedelsol.com, was not accessible to the blind. Reid was the lead plaintiff in the class action lawsuit filed in October against Haro in the U.S. District Court for the Southern District of New York
Court filings show both sides have agreed to ask the court to dismiss the case permanently. The judge has not approved the dismissal request.
In October, Joe Hawk, Haro's COO, said the company believed its sites were ADA complaint but that it would correct any broken links or parts of the site the make it difficult to use by the disabled.
Hawk had no comment this week.
Reid is the lead plaintiff on at least four similar suits filed in the court in October. The other cases appear to be proceeding.
Legal experts say thousands of similar suits — charging that commercial or government websites are not ADA compliant — have been filed in recent years. One source counted over 2,200 such suits filed in 2018, a 177% increase over the year prior.
A federal judge has dismissed Claremont from a discrimination lawsuit related to the fatal police shooting of a 25-year-old city resident in 2016.
Tracy McEachern, the mother of Cody LaFont and the administrator of his estate, filed suit in September, saying the police officer who killed her son used excessive force and that LaFont was the victim of discrimination because of a mental disability.
Ivonne Rodriguez, a Cal State LA graduate student in family counseling, is hoping to resolve her current U.S. Department of Education’s Office of Civil Rights complaint against the school by negotiating with them.
Rodriguez said she filed her complaint about the university due to alleged ADA non-compliance issues she said she has seen around campus. In her complaint, Rodriguez named King Hall, the library and restrooms as key problematic sites.
Tucker, Taliaferro & McKnight Bill to Require Employee Training Concerning Service or “Guide” Dogs Advanced by Committee
Under the Americans with Disabilities Act (ADA), service dogs are allowed to accompany their owners almost anywhere an individual is permitted to go in order to perform their job as an aid.
In August of 2013, a legally blind man was asked to remove his dog from a store even after he explained and gave proof that it was a trained service animal. The resident filed a civil rights complaint and under the settlement, the store was required to train its employees about their legal obligations when dealing with service animals and provide them with related sensitivity training.
Seeking to prevent instances of disabled individuals being denied access to a store or other public place because of their accompanying service dog, the Assembly Law and Public Safety advanced a measure (A-218) on Monday to implement employee training.
Sponsors of the bill, Assembly Democrats Cleopatra Tucker, Adam Taliaferro and Angela McKnight, intend for the legislation to educate employees about State and federal disability laws concerning patrons who travel with service or “guide” dogs and how to properly help them.
As defined by the ADA, a service animal means “any dog that is individually trained to do work or perform tasks for people with disabilities.”
“Unfortunately, some businesses remain unclear about state regulations protecting New Jersey’s disabled residents who require service dogs. These animals are not pets,” said Tucker (D-Essex). “This requirement would help clear up any confusion or misinformation out there on the treatment of service animals in public places.”
Training required by the bill would apply to employers with one or more employees serving customers and others in a place of public accommodation or other public facility.
“Unlike a companion or therapy animal, service animals provide much more than comfort to their owner. They help owners mitigate the impediments of a disability enabling them to be independent,” said Taliaferro (D-Cumberland, Gloucester, Salem). “By training and teaching employees how to handle situations in which service dogs are involved, we protect the rights of individuals who are disabled to have their guide dog wherever they go.”
“Service animals are the eyes, the ears and ultimately life line for many disabled individuals in our State,” said McKnight (D-Hudson). “From those who have suffered a physical injury, are blind or deaf to those who suffer from seizures or have anxiety and PTSD, these dogs are critical in assisting with everyday tasks as well as in providing support in medical emergencies. Educating employees helps ensure that nothing stands in the way of a service animal doing its job.”
An employer may satisfy the training requirement by utilizing a training program from the Division on Civil Rights within the Department of Law and Public Safety, the New Jersey State Bar Association, or any other entity.
The bill goes to the Speaker for further consideration.
The Americans with Disabilities Act (ADA) reaches its 30th anniversary this year, which will touch off a year’s worth of coverage likely to be almost wholly celebratory in tone. Ten years ago, on the law’s reaching its 20th year, I took a less celebratory view that I think holds up well.
Meanwhile, back in the trenches, four law firms and associated clients over a period of about a week last fall launched a wave of more than 100 putative class actions charging that retailers are violating the ADA by marketing gift cards that do not include Braille versions. Earlier, the same four firms and their associated clients had filed hundreds of New York lawsuits alleging that websites fell short of accessibility to the disabled.
“The targets selected by plaintiffs in this new wave run the full gamut of retail establishments, including big box retailers, grocery stores, movie theaters, restaurants, clothing brands, and online gaming and other services,” reports one law firm. Typically, according to the Lawsuit Reform Alliance of New York (LRANY), “a successful plaintiff in [a local web accessibility] settlement will receive only $500 per case, but attorney’s fees average many times that amount, approximately $16,000 per case or more, depending on the law firm, the court and other factors, thereby giving plaintiff’s lawyers ample incentive to file as many cases as possible.” One attorney is said to have made about a million dollars a year this way over eight years.
Does the ADA really require Braille on gift cards as an accommodation? Who knows? The courts are unlikely to provide a firm answer any time soon, what with the Supreme Court speaking only very infrequently and generally on the subject. Last fall, in the Domino’s case, it ducked a chance to address the most pressing ADA issue of the past decade: the extent to which it requires redesign of websites.
And so the ADA continues making life miserable for businesses and other regulated parties both large and small (just this weekend San Jose Spotlight reported on the demise of a much‐loved local coffee shop). As I wrote last year in this space:
Because ADA requirements are both obscure and voluminous and even compliance experts do not agree among themselves how much accommodation counts as enough, potential violations can be found at most businesses. While the ADA is a national law, much of the mass filing of accessibility complaints goes on under state laws that piggyback or expand on the federal version, often with added features enhancing damages or attorney’s fee entitlements.
Only Congress can clarify what this law means, and it consistently refuses to do that, no matter which party is in charge. You can read more about the ADA’s ongoing impacts here, here, here, here, and here [adapted from Overlawyered]