As life moves online, gaps in digital accessibility mean millions of disabled Americans are being left behind.
As Coronavirus-Related Job Losses Surge, Employers Should Brace for an Influx of Disability Discrimination Lawsuits
In preparation for this influx of litigation, this article provides an overview of “failure to accommodate” claims under the Americans with Disabilities Act (ADA), which will be a centerpiece of coronavirus litigation for years to come.
With Lawsuits on the Rise, Here are 5 Things Every Business Needs to Know About Website Accessibility
Nearly 1 in 5 Americans live with some form of disability. And while not all disabilities will influence how a person interacts with websites, many do.
In light of recent court cases, it has become increasingly understood that “public accommodations” for those with disabilities include not only physical locations but also websites. Title III of the Americans with Disabilities Act (ADA) mandates that “public accommodations” must remove any barriers that would prevent a person with disabilities from making full use of the accommodation.
The necessity to consider how accessibility applies to physical locations is clear—but what makes a website accessible? Here are five things every business needs to know about website accessibility.
Employers in many jurisdictions are gradually reopening or formulating plans to do so while managing numerous financial and personnel challenges. One such challenge involves healthy employees who refuse to return to work despite the employer’s best efforts to insure a safe work environment. An employer’s initial instinct may be to interpret the employee’s refusal as a resignation, but they should consider the following factors before doing so.
- Interactive Process
Engage in an interactive and constructive dialog with your employee to determine the employee’s concerns about returning to work and if they can be alleviated. Listening to the employee and discussing viable options may rectify the employee’s concern. In some instances, the employee may not be aware of steps the employer is already taking that address their concerns. In other circumstances, an employee’s concerns might be addressed through simple, additional steps the employer can take. Having a real dialogue with employees about these issues will help to determine next steps.
- Americans With Disabilities Act (ADA)
Employees are entitled to a reasonable accommodation for conditions covered under the ADA and potentially your state’s anti-discrimination statute. The Equal Employment Opportunity Commission (EEOC) has not stated that a COVID-19 infection is a disability, but has encouraged employers to continue to accommodate employees with disabilities, if they are subject to an increased risk of COVID-19. Accommodations can include personal protective equipment (PPE), temporary modification of work schedules, temporary job restructuring, leaves of absence or working remotely. Mental illness, which is a disability, can be exacerbated by the pandemic and may also necessitate accommodations. Employers may request that an employee obtain accommodation recommendations from their physician that will enable the employee to work. Employers are not required to provide accommodations that constitute an undue hardship. See this alert for more detail on pandemic-related workplace compliance guidance from the EEOC.
- Occupational Safety and Health Administration (OSHA)
Pursuant to OSHA regulations, an employee may refuse to work if they meet the following strict criteria after notifying the employer of the dangerous condition:
The employee must reasonably believe they are in imminent danger.
A reasonable person would agree that there is a real danger of death or serious injury.
Due to the urgency of the situation, there is insufficient time to eliminate the danger.
This “danger” cannot be a generalized fear and must be a real and identifiable condition. If employers are following the guidelines published by the Centers for Disease Control, it will be difficult for an employee to successfully argue they are in imminent danger.
- National Labor Relations Act (NLRA)
Employees, whether or not they are unionized, have the right to engage in concerted activity for mutual aid or protection under the NLRA. Such activity may include two or more employees refusing to work or certain assignments due to conditions related to COVID-19, or an employee demanding PPE on behalf of herself and others. Employers may be subject to fines and penalties for violating an employee’s NLRA rights.
- Family First Coronavirus Response Act (FFCRA)
Employers with under 500 employees are subject to the parameters of the FFCRA. Even if the employer re-opens, the employee may be still entitled to paid leave under FFCRA if they are unable to work (or to work remotely) for certain COVID-19 related reasons. With regard to their own condition, the employee is entitled to up to 80 hours of paid sick time if they are diagnosed with or are particularly vulnerable to COVID-19, and employers can request confirmation via a doctor’s note.
- Unemployment Regulations
Employees are not usually entitled to unemployment compensation when there is work available and they refuse to work. The U.S. Department of Labor has issued guidance stating that “barring unusual circumstances, a request that a furloughed employee return to his or her job very likely constitutes an offer of suitable employment that the employee must accept.” However, each state has specific regulations concerning what constitutes a viable offer of work, so employers should carefully check their state’s unemployment guidance to insure compliance.
- Provide a Safe Work Environment
CDC guidelines recommend cleaning and disinfecting the work facility at a heightened level during this health crisis. Refer to CDC's detailed guidance on disinfecting your work environment. Employers must continue to follow the evolving advice of the CDC concerning returning employees to work and cleaning their facilities.
Employers and employees have both been through a great deal of stress in the last several months and tensions can be high. When an employee refuses to return to work, careful consideration of the above factors can avoid disputes and ease the return process.
Fraudulent Flyers Regarding Facemasks
The Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal.
These postings were not issued by the Department and are not endorsed by the Department.
The Department urges the public not to rely on the information contained in these postings and to visit ADA.gov for ADA information issued by the Department.
You might have seen the videos on social media: Shoppers who refuse to wear face masks confront the store manager, who patiently explains it’s store policy that all customers wear them.
But can store owners legally enforce that policy?
Yes, say legal and retail experts, as long as they don’t discriminate against anyone who can’t wear a mask because they’re disabled or against certain groups, called “protected classes.”