On December 26, 2017, the U.S. Department of Justice published a notice for web accessibility. The notice, like many governmental documents, was confusing.
The notice withdrew a document called “Advance Notice of Proposed Rulemaking,” which had announced a new set of upcoming regulations for accessibility of web information under the Americans with Disabilities Act. Many observers assumed (i) the Advance Notice meant that the DoJ was going to issue regulations that forced websites to be accessible to users with disabilities, and (ii) having withdrawn the Advance Notice, the DoJ did not, ultimately, require accessible websites.
Both of these assumptions are wrong.
The Americans with Disabilities Act already required websites to be accessible to disabled users. This has been well established in U.S. courts — most recently in a decision by the Ninth Circuit Court of Appeals against Domino’s Pizza.
Moreover, the DoJ issued a clear statement, via a letter from the assistant U.S. attorney general, on September 25, 2018:
The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.
In other words, there was no need for the Advance Notice of Proposed Rulemaking, as the courts and the DoJ made clear their positions: an accessible website is required under the ADA.
More Than 75 New York Galleries Are Slammed With Lawsuits for Allegedly Violating the Americans With Disabilities Act
Galleries are the latest industry to be targeted by a wave of lawsuits over the accessibility of their websites.
A New York Mother's Tragic Death Highlights Dangerous Accessibility Gaps for Parents Who Use Public Transit
Brit + Co
A young New York mother has died after falling down the stairs leading into the Seventh Avenue B-D-E station in midtown Manhattan on Monday evening. According to local reports, the mom, 22-year-old Malaysia Goodson, was carrying her one-year-old in a stroller down the steps into the station when she fell. The station, like many others in the city’s aging subway system, does not have an elevator.
Goodson was taken to the hospital, where she was pronounced dead. Local NBC affiliate News 4 reported that Goodson’s toddler, Rhylee, was not hurt in the fall and is now with her dad.
News of Goodson’s tragic death went viral on social media on Tuesday, as many noted that public transportation in New York City — and in cities around the country — is not accessible for parents with small children, as well as people who use mobility devices such as canes, walkers, and wheelchairs. Although the Americans With Disabilities Act (ADA) mandates that public transportation such as buses and trains, and stations, be accessible to people with disabilities, this is often not the case in practice.
JD Supra (press release)
Seyfarth Synopsis: The EEOC has withdrawn the incentive provisions in its ADA and GINA wellness program regulations. The remaining provisions have less bite as a consequence, especially in the ADA context. But HIPAA wellness regulations remain unaffected by this agency action.
Effective January 1, 2019, the federal Equal Employment Opportunity Commission (EEOC) has removed the incentive sections in its final regulations on wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). The incentive sections can be found at 29 C.F.R. § 1630(d)(3) and 29 C.F.R. § 1635.8(b)(2)(iii).
The reason for this removal has its genesis in litigation. If you are interested in the history, please see our prior Management Alert on this topic. As a result of the EEOC modifications, private sector covered employers—employers with 15 or more employees—are no longer subject to (and can no longer rely on) EEOC-approved incentives. Now, the only agency-approved incentives in the wellness context can be found in regulations issued under HIPAA, the Health Insurance Portability and Accountability Act.
The question then becomes: What is left in the EEOC ADA and GINA wellness regulations, and is it legally binding?
As to the ADA, the EEOC regulation still provides that wellness programs that include disability-related inquiries or medical exams must be “voluntary” and “have a reasonable chance of improving the health of, or preventing disease in, participating employees, and [ ] is not overly burdensome.” In order to be “voluntary,” programs must still comply with the remaining requirements set forth in the regulations. (See our prior Management Alert.)
The rule also still includes the EEOC position that the benefit plan safe harbor provisions in the statute “do not apply to wellness programs, even if such plans are part of a covered entity’s health plan.” Courts that have addressed the ADA safe harbor provisions, however, have not endorsed the attempted EEOC invalidation of the provisions in the wellness context. See EEOC v. Flambeau, Inc., 131 F. Supp. 3d 849 (W.D. Wisc. 2015), aff’d on other grounds; Seff v. Broward County, 691 F.3d 1221 (11th Cir. 2012). (See our blog post Is EEOC Regulation of Wellness Plans Legal?—Seventh Circuit Declines to Say Yes.) So, employers have a strong argument that, regardless of how the EEOC defines its amorphous verbiage of “reasonable” and “not overly burdensome,” the safe harbor trumps all, and protects wellness programs that are part of a formal benefit plan from challenges under the ADA.
As to GINA, there is no statutory benefit plan safe harbor. So, employers must grapple with the meaning of what is left in the regulation, including terms like “reasonable” and “not overly burdensome,” if the wellness program requests participant genetic information.
The Trump Administration also seems to have cut back on EEOC enforcement of what is left in the EEOC wellness regulations, but that may change over time. For now, employers who want to establish and maintain incentive-based wellness programs have stronger defense arguments, as long as they comply with the ADA benefit plan safe harbor, HIPAA regulations and authorizing statutes, and GINA.
While many companies and government agencies have their own definition of disability, the requirements are, however, specific under the Americans with Disabilities Act, according to Northern Marianas Protection & Advocacy Systems Inc. specialists Elsie Tilipao and Greg Borja.