What To Know About Website Accessibility Claims
Mondaq News Alerts
The new battleground for Plaintiffs filing ADA accessibility cases involves claims of barriers not in physical space but in cyber space. The Plaintiffs' bar has become more aggressive in filing claims asserting that public webpages that are not accessible to disabled users violate Title III of the Americans with Disabilities Act ("ADA"). The body responsible for enforcing the ADA, the Department of Justice (DOJ), has delayed its proposed amended regulations to the law, which would provide some guidance on this issue. This has left an increasingly litigated issue open for the Courts to interpret how Title III of the ADA applies to business websites, leading to inconsistent legal decisions. Businesses with a cyber presence need to anticipate and - more importantly - prepare to deal with website accessibility claims.
The National Law Review
An employer that terminated an employee based on its honest belief the employee violated its drug policy was entitled to summary judgment on the employee’s Americans with Disabilities Act claim, according to a Kentucky federal court. The court also granted summary judgment to the employer on the employee’s failure to accommodate and wrongful discharge claims. Adkins v. Excel Mining, LLC, 7:15-cv-00133-ART-EBA (E.D. Ky. Oct. 4, 2016).
Defendant maintained a zero-tolerance drug policy, which prohibited employees from using prescription drugs without a prescription. The policy had one exception: if the employee disclosed prescription drug use to Defendant, the employee could continue working if the employee’s doctor said it was safe to do so.
Plaintiff failed a random drug test, testing positive for both prescription drugs and alcohol. Defendant allowed Plaintiff to undergo treatment for alcohol dependency. During his six-day in-patient treatment stay, Plaintiff’s doctors prescribed oxazepam, a prescription drug that treats alcohol-withdrawal symptoms.
Plaintiff subsequently returned to work and provided Defendant with his discharge papers. Plaintiff also named the prescriptions he was prescribed during treatment. However, neither the discharge papers nor Plaintiff mentioned oxazepam. Plaintiff took another drug test and tested positive for oxazepam. Defendant called the drug testing lab, and learned that oxazepam should clear a user’s system within three days. Defendant concluded that the drug should have cleared his system by the time he failed the drug test. Defendant terminated Plaintiff’s employment for violating its drug testing policy.
Plaintiff claimed Defendant violated the ADA and the Kentucky Human Rights Act, and that it terminated him in violation of public policy. Plaintiff specifically claimed he was terminated because he is an alcoholic. The Court hinted that Plaintiff may not be “an individual with a disability” because the ADA excludes current users of illegal drugs. However, it decided that Plaintiff’s claim failed on other grounds.
The Court first rejected Plaintiff’s argument that the timing alone between his treatment and his termination could carry the day. The Court then focused on the honest belief doctrine. The Court held Defendant was only required to “make an informed and considered decision based on the facts before it,” even if the belief is ultimately “mistaken, foolish, trivial, or baseless.” The Court concluded the Defendant’s reliance on the drug testing laboratory’s advice and the discharge papers (which did not list oxazepam) supported its honest belief Plaintiff violated its drug policy. Thus, summary judgment was appropriate and the case was dismissed.
What's An "Implied" Request For An ADA Reasonable Accommodation?
Mondaq News Alerts
A divided panel of the Eighth Circuit recently decided that an employer may be required to assume or infer from the circumstances that an employee is seeking a reasonable accommodation – even when no affirmative request is made.
The courts and the Equal Employment Opportunity Commission (EEOC) have made clear for decades that an employer's obligation to engage in the interactive process under the Americans with Disabilities Act of 1990 (ADA) is not triggered until the employee seeking reasonable accommodation actually requests assistance.
To quote a recent case decided by the EEOC: "generally an individual with a disability must request a reasonable accommodation by letting the [employer] know the individual needs an adjustment or change at work for a reason related to a medical condition" Adina P. v. Brennan, 2016 EEOPUB LEXIS 336 (EEOC 2016). To be sure, no "magic words" have been required and no court would expect each employee to ask for a "reasonable accommodation" by those words, but, until now, courts have uniformly required that an employee at least indicate that she wants help or assistance because of a disability.
Earlier this month, though, a divided panel of the Eight Circuit Court of Appeals, lowered the bar substantially and held that a jury should determine whether an employee requested a reasonable accommodation by simply notifying her supervisor that she could not obtain a required CPR certification until after she completed physical therapy. See Kowitz v. Trinity Health, et al., Case No. 15-1584 (8th Cir. October 17, 2016). The employee never asked to be given extra time to complete the certification, nor to be transferred to another position that did not require CPR certification. Still, the majority held that a reasonable jury could find that the employer "understood" the employee's communications to be a request for accommodation. Id. at p. 9, n. 1.
The dissenting judge reiterated the point that virtually every employer would assume to be true: "an employee who wants additional assistance cannot 'expect the employer to read her mind and know she secretly wanted a particular accommodation and then sue the employer for not providing it" Id. at p.12 (citation omitted).
Defense Strategy: Interactive Process Can Be Used To Defeat ADA Claims
JD Supra
Most employers are well aware that the Americans with Disabilities Act (ADA) requires them to engage in an “interactive process” with employees or applicants who indicate they have a disability and may require some type of reasonable accommodation. However, engaging in that process can often be time-consuming, requiring repeated communications with employees or applicants, their medical providers, and possibly other medical providers.
Because of these hurdles, there is a tendency to want to streamline the process. However, a recent case in the 6th Circuit Court of Appeals demonstrates that following the interactive process can effectively shield an employer from liability; you should pay attention to the case and learn by example (Swank v. CareSource Management Group Co.).
Businesses partner to educate on website accessibility for disabled
Sioux Falls Argus Leader
Click Rain and Davenport Evans have partnered to produce a white paper detailing what businesses should know about how to manage a website for compliance with the Americans with Disabilities Act, or ADA.
Nearly half of adults living with a disability in the U.S. reported using the Internet in the 2010 U.S. Census. The Department of Justice is expected to announce new regulations for digital accessibility within the ADA.
According to Davenport Evans and Click Rain, while it’s not prevalent in South Dakota yet, other parts of the country are seeing an increase in pre-litigation demand letters and civil lawsuits initiated against businesses for failing to maintain websites that are compliant with the ADA’s standards for accessibility.
These lawsuits generally allege a violation of the ADA because individuals with disabilities have been denied access to a business’s goods and services because of inaccessible websites.
The whitepaper furthering explaining the issue can be downloaded at www.clickrain.com and www.davenportevans.com.
Accessible360: Website and Digital Apps For Inclusivity
thelinemedia.com
Since 1990, the Americans with Disabilities Act (ADA) has ensured equal opportunity for Americans who suffer from physical and mental conditions that limit their means. While wheelchair ramps, closed captioning and wider doorways have become commonplace, the digital realm still lags behind.
Accessible360, founded by entrepreneur Mark Lacek, seeks to fix that oversight. The company’s purpose is to make websites and digital apps fully functional for those impaired by blindness, deafness, or physical or cognitive restrictions. The company was launched this April and began promotion last month, just in time to help businesses comply with a rollout of new regulations from the Department of Justice in 2018.
Californians voted to legalize marijuana, but employers can still restrict its use
HR Dive
- California voters may approve Proposition 64 legalizing marijuana, but employers can follow federal law and restrict its use – even for medical purposes – in the workplace, reports the San Francisco Chronicle.
- Employers could prohibit the use and possession of the drug, and take action against someone who’s found to be under its influence. Companies also could refuse to hire anyone who tests positive for marijuana in pre-employment drug-testing and fire an employee who agrees to be tested but tests positive. Voters couldn't see these restrictions on the ballot summary, but they're written in a 62-page proposition.
- The California Chamber of Commerce has taken no took no position on Proposition 64, although it did oppose a previous attempt to legalize marijuana because it thought employers would have to accommodate its use in and outside of the workplace. That measure failed
Former city of Sherman employee alleges he was not accommodated after injury
Southeast Texas Record
A Grayson County man alleges his municipal employer failed to accommodate him and terminated him after he was injured on the job.
Ronnie G. Jackson filed a complaint on Oct. 10 in the Sherman District of the Eastern District of Texas against the city of Sherman alleging that the governmental entity violated the Americans with Disabilities Act regulations.
According to the complaint, the plaintiff alleges that on July 11, 2014, he injured his right knee while performing his duties as a mechanic for the city of Sherman. On April 6, 2015, the suit states the defendant's human resources administrator offered him a modified light duty position of data entry in the RTA system. On Sept. 30, 2015, the suit states he was discharged from his employment.
The plaintiff holds the city of Sherman responsible because the defendant allegedly subjected him to discrimination, demoted and denied him reasonable accommodation and terminated him for being unable to lift/carry objects weighing more than 25 pounds, which he claims was not required for the data entry position.
The plaintiff requests a trial by jury and seeks judgment against defendant in an amount within the jurisdictional limits of the court together with interest, liquidated damages, reasonable attorney’s fees, costs of court and all further relief he may be justly entitled. He is represented by Ronald R. Huff in Sherman.
Sherman District of the Eastern District of Texas Case number 4:16-cv-00774
New ADA Compliance Disclosures Required for California Landlords
Lexology
California Gov. Jerry Brown on Sept. 16, 2016, signed into law AB 2093, which amends California Civil Code Section 1983 and expands disclosures regarding certain Americans With Disabilities Act (ADA) matters. The requirements of the new law apply to all California commercial leases executed on or after Jan. 1, 2017.
Under the prior law, which remains in effect through the end of 2016, commercial leases were required to state whether the property had been inspected by a Certified Access Specialist (CASp) to determine whether the property met all applicable construction-related accessibility standards. If the property had been inspected, the lease was required to state whether the property had passed or failed the inspection.
The new law keeps the notice requirement of the prior law and adds several new requirements.