Accessible EV Charging a Must for Risk Management
GlobeSt.com
While California owners and managers of electric vehicle charging stations are providing a much-needed service to guests, many are unaware that a certain number of them must be accessible to the disabled.
Ninth Circuit Rules That Lack of Web Accessibility Regulations Does Not Bar ADA Suits
JD Supra
The U.S. Court of Appeals for the Ninth Circuit issued a decision on January 15, 2019 in a closely followed web accessibility case, Robles v. Domino’s Pizza, LLC, reaffirming Ninth Circuit precedent holding that companies whose online activities share a nexus with physical places of public accommodation may be held liable under the Americans with Disabilities Act for failing to make their websites and apps accessible to persons with disabilities. Most notably, however, the decision expressly rejected the argument that the lack of regulatory clarity on the ADA’s application to web content violates due process rights. Robles may have ramifications for how other courts consider due process arguments under the ADA in the online context and for other regulatory areas where statutory obligations have not been clarified by federal agencies.
Ninth Circuit: Domino's Website Required to Comply With ADA
JD Supra
Litigation surrounding the accessibility of online services continues to evolve. On January 15, 2019, the U.S. Court of Appeals for the Ninth Circuit ruled that the website and mobile app of Domino's Pizza must comply with the Americans with Disabilities Act (ADA) to make these online services fully accessible to the visually impaired.
In Robles v. Domino's LLC, Guillermo Robles—who is visually impaired—brought suit in 2016 claiming the pizza chain's website not only precluded him from ordering a customized pizza, but also made online coupons inaccessible. Mr. Robles sought an order requiring compliance with the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), an international voluntary standard for making online content accessible.
His case initially was dismissed in 2017 by a district court judge who held that while the ADA covered the company's website, imposing liability on Domino's would violate the company's 14th Amendment right to due process because the Department of Justice (DOJ) had not yet promulgated regulatory standards for online accessibility. In doing so, the court invoked the doctrine of primary jurisdiction, which allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.
The Ninth Circuit's three-judge panel reversed, writing that Domino's had "been on notice that its online offerings must effectively communicate with its disabled customers and facilitate 'full and equal enjoyment' of Domino's goods and services." The Court added that a lack of specific regulations did not eliminate the company's clear statutory duty, and the Constitution does not require the DOJ to "spell out exactly how Domino’s should fulfill [its] obligation." The court also held that the district court had erred in invoking primary jurisdiction because the DOJ's withdrawal of its Advanced Notice of Proposed Rulemaking meant that undue delay in a resolution was inevitable, and such a delay was unnecessary because the application of the ADA was within the district court's competence.
The court additionally found that the ADA applied to Domino's website and mobile app because their inaccessibility "impedes access to goods and services of its physical pizza franchises—which are places of public accommodation." The court added that the statute applies to services of a place of public accommodation, not services in a place of public accommodation.
As a result, the Ninth Circuit remanded the case to the district court to determine, after discovery, if the "Domino's website and app provide the blind with effective communication and full and equal enjoyment of its products and services as the ADA mandates."
While the Ninth Circuit has indicated its position, the legal landscape regarding online accessibility remains uncertain. The 11th Circuit heard oral arguments in the noteworthy Winn-Dixie case on October 4, 2018, but has yet to issue a ruling. In that case, a plaintiff similarly claims that a grocery store's website is inaccessible to blind individuals.
As some courts have required companies' websites to be ADA compliant—and in light of DOJ's indefinite inaction—businesses are encouraged to review their policies to ensure online accessibility is being addressed.
Starting a Business in California: What You Should Be Aware Of
NuWire Investor
According to some of the most recent data available, there are over 3.32 million small businesses in California. If you’re thinking about adding to that total by starting …
You’ll need to form an LLC or a corporation with the state and ensure that you comply with all local requirements such as obtaining a local business license and necessary permits. If you fail to do this, you can end up with stiff penalties. If you plan to sell any tangible personal property, you’ll need to get a seller’s permit from the California Board of Equalization. Your best bet, if you don’t have a business attorney (highly recommended), is to go to the CalGold website which can help you determine which permits and licenses will apply to your business.
Your business must comply with the American with Disabilities Act (ADA). Failure to do so can result in a lawsuit and significant expenses. The most frequent claims against businesses in California related to the ADA involve route and entry accessibility, parking, bathrooms and access within the facility. Be aware that the California Franchise Tax Board is quite vigilant about going after businesses that don’t file and pay their taxes. Hiring a qualified accountant can help you save money on your tax below and help you avoid tax pitfalls so that you can stay in business and grow your business successfully.
Business Leaders Are Introducing Disability Rights As A Corporate Social Responsibility (CSR) Issue
Forbes
New York State Comptroller Thomas P. DiNapoli is calling on major corporations to be more proactive in demonstrating their disability inclusion efforts. In a recent statement as well as in letters to 49 company presidents in New York State’s pension portfolio (including Apple, McDonald’s, Nike and Twentieth Century Fox) he asked each to measure and report inclusion across the enterprise, beginning in 2019.
How will they do that? DiNapoli is recommending that disability inclusion data be measured and reported using a benchmarking tool called the Disability Equality Index (DEI) is a joint initiative from Disability: IN, a nonprofit resource for worldwide business disability inclusion, and the American Association of People with Disabilities (AAPD).
The announcement is a huge vote of support for the disability community.
2019 Wellness Program Incentives Affected by Final EEOC Rules
JD Supra
On December 20, 2018 the Equal Employment Opportunity Commission (EEOC) vacated the incentive provisions of its final wellness program regulations, effective January 1, 2019. This marks a dramatic reversal from the EEOC’s prior stance and employers again face uncertainty as to their wellness program incentives.
As background, the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) generally require that disability-related inquiries, medical examinations and requests for health information from an employee or a spouse must be “voluntary.” For years, it was unclear whether any incentives, such as health plan premium reductions, could be offered to encourage employee participation in wellness programs subject to ADA and GINA or whether such incentives would make participation “involuntary.”
Then, in May 2016, the EEOC published final rules providing that incentives, whether in the form of rewards or penalties, could be offered in amounts up to 30 percent of the cost of self-only coverage to encourage employee participation in a wellness program. The AARP filed suit challenging these rules, and a federal court found in August 2017 that this limit on incentives was arbitrary and didn’t ensure voluntary participation. The court ordered the EEOC to reconsider the regulations but left the incentive limit in place in the meantime to avoid disrupting existing wellness programs. However, the EEOC determined that it would not be able to issue a new rule that would be effective until 2021. The court determined that the EEOC’s proposed timetable was too slow and vacated the 30 percent safe harbor for incentives effective January 1, 2019.
For 2019 and beyond, employers will want to properly structure (or restructure) their wellness programs to ensure compliance with the final EEOC rules. The most conservative approach to this change is to remove all incentives associated with wellness programs that are subject to the ADA or GINA. These include programs with health risk assessments, biometric or lab tests and/or nicotine use tests. However, although there is no longer any guarantee that wellness incentives are permissible up to a specific amount, current law does not expressly prohibit or permit offering incentives to participate in a wellness program.