Category: ADA

U.S. Supreme Court Vacates, Dismisses as Moot Decision Holding ADA ‘Tester’ Has Standing to Sue

The U.S. Supreme Court vacated a decision by the U.S. Court of Appeals for the First Circuit holding a self-appointed “tester” has standing to sue under the Americans With Disabilities Act (ADA). Acheson Hotels, LLC v. Laufer, No. 22-429. However, the Court declined to address the merits of whether the tester had a sufficient concrete and particularized injury to establish standing, holding the case had become moot and leaving in place a deep circuit split on the standing issue.

Reservation Rule; Title III

Deborah Laufer had sued Acheson Hotels for alleged violation of the Reservation Rule, a Department of Justice regulation requiring places of lodging to identify and describe accessible features in the hotels and guest rooms offered through their reservations service. The information must have enough details to allow individuals with disabilities to determine whether a given hotel or guest room meets their accessibility needs.

Title III of the ADA requires hotels to make reasonable modifications to reservations policies, practices, or procedures when necessary to ensure that individuals with disabilities can reserve accessible hotel rooms with the same efficiency, immediacy, and convenience as those who do not need accessible guest rooms.

Case of Self-Appointed Tester

As a self-appointed tester, Laufer has sued more than 600 hotels by searching the internet for hotel websites and finding those that lack such accessibility information. Although Laufer has no intention of accessing the hotels she sued, she claims to enforce the law on behalf of other disabled persons.

In response to Laufer’s suits, the hotels argued Laufer lacks standing to bring these lawsuits. Allowing Laufer and other self-appointed testers to sue thousands of hotels across the United States on behalf of every disabled person in the country simply by visiting their websites would cause a flood of litigation from other testers, the hotels warned.

The First Circuit joined the Fourth and Eleventh Circuits to hold that Laufer has standing. In contrast, the Second, Fifth, and Tenth Circuits have held that she lacks standing.

Dismissal Requested

After Acheson Hotels had submitted its merits brief to the Court, but before oral argument, another court sanctioned one of Laufer’s attorneys for misconduct related to some of Laufer’s ADA cases for repeatedly demanding $10,000 in attorneys’ fees after filing boilerplate complaints. Laufer dismissed her lawsuit with prejudice, ostensibly because of that sanction.

Laufer then urged the Supreme Court to dismiss the case on the ground of mootness, arguing “mootness is easy and standing is hard,” so the Court should “refrain from resolving a difficult question in a case that is otherwise over.” Acheson Hotels urged the Court to decide the standing issue, arguing “the standing issue might not come back anytime soon. Acheson Hotels argued, the Court recounted, “While Laufer has disavowed the intention to file any more ADA tester suits, others will file in the circuits that sided with her, and hotels will settle, regarding it as pointless to challenge circuit precedent.” It continued, “‘Why would any hotel take a case this far,’ Acheson asks, ‘if the respondent can evade our review by abandoning a claim rather than risking a loss?’”

Dismissed as Moot

In an 8-1 opinion by Justice Amy Coney Barrett, the Court dismissed the case as moot.

The Court explained, “We are sensitive to Acheson’s concern about litigants manipulating the jurisdiction of this Court. We are not convinced, however, that Laufer abandoned her case in an effort to evade our review.” It continued, “She voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. She represented to this Court that she will not file any others.” Although, the Court said, “Laufer’s case against Acheson is moot, and we dismiss it on that ground, … [w]e emphasize, however, that we might exercise our discretion differently in a future case.”

The Court also vacated the First Circuit’s decision under its practice of “Munsingware vacatur,” meaning the issue is once again open in that circuit.

Dissent

Justice Clarence Thomas filed a lone dissent. He would have reached the standing issue, reasoning “whether Laufer had standing the day she filed her suit is logically antecedent to whether her later actions mooted the case.” Moreover, he continued, “the circumstances strongly suggest strategic behavior on Laufer’s part.” In addition, he wrote, “Laufer’s logic is … that she dismissed her claim—and the Court should no longer address whether she had standing—because an attorney she hired in an entirely different case engaged in misconduct.” According to Justice Thomas, he “would not reward Laufer’s transparent tactic for evading our review.”

Justice Thomas then explained he would have held that Laufer lacked standing. He reasoned, assuming the Reservation Rule creates a right to accessibility information, “Laufer asserts no violation of her own rights with regard to that information.” He continued, “Acheson Hotels’ failure to provide accessibility information on its website is nothing to Laufer, because she disclaimed any intent to visit the hotel.”

Concurrence

In a lone concurrence, Justice Ketanji Brown Jackson explained that, although she agreed that the Court followed its “Munsingware vacatur” precedent, she would instead require a party to show equitable entitlement to such relief.

Takeaway

After Acheson, testers generally lack standing to sue for alleged violation of the Reservation Rule in the Second, Fifth, and Tenth Circuits and have such standing in the Fourth and Eleventh Circuits. The issue is once again open in the First Circuit and remains open in the other circuits. The Supreme Court likely will be called upon again to resolve the circuit split.

Jackson Lewis P.C. © 2023
For more news on Supreme Court ADA Decisions, visit the NLR Litigation / Trial Practice section.

EEOC Takes Action to Address Mental Health Discrimination in the Workplace

Employers must take notice that the United State Equal Opportunity Commission (EEOC) is cracking down on companies that discriminate against workers because they have a mental health condition. Mental health conditions, such as major depressive disorder, bipolar disorder, and schizophrenia, substantially limit brain function. The EEOC determined these disorders constitute disabilities under the American with Disabilities Act (ADA).

The EEOC has significantly increased charges against employers for alleged ADA violations premised upon mental health issues.

In September, the EEOC released its Strategic Enforcement Plan (SEP). A review of the SEP reveals that the EEOC will focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact particularly vulnerable workers and persons from underserved communities, including workers with mental health related disabilities.

Hence, employers must be extremely careful when dealing with employees or prospective employees who suffer from mental health conditions.

Under the ADA and other nondiscrimination laws, employers must provide “reasonable accommodations” to qualified employees with disabilities. These accommodations are adjustments to the workplace that allow these employees to perform their job duties. These accommodations are usually not costly and can be beneficial in allowing employees to return to work, avoiding productivity losses, and promoting the recruitment and retention of qualified employees.

However, not all employees with mental health conditions require accommodations to perform their job duties. For those who do, accommodations should be individualized and developed with the input of the employee. Below is a list of examples of accommodations that have helped employees with mental health conditions to better perform their job duties. These are not all possible accommodations but provide a starting point to help employers promote an inclusive and supportive work environment. These include:

  • Flexible workplace arrangements
  • Scheduling adjustments
  • Sick leave or flexible use of vacation time
  • Individualized breaks
  • Modification of non-essential job duties
  • Additional training or support
  • Positive reinforcement and flexible supervision
  • Accommodations to the work environment, equipment, and technology
  • Regular meetings between employees and supervisors to discuss workplace issues.

It is important for all employees to be aware of their rights and provide relevant training to co-workers and supervisors. Effective implementation of these accommodations will help create a more inclusive work environment and benefit both employees and employers.

COPYRIGHT © 2023, STARK & STARK
For more news on Mental Health Discrimination in the Workplace, visit the NLR Labor & Employment section.

Supreme Court Says Case Over ADA ‘Tester’ Standing Is Moot, But Issue is Still Alive

On December 5, 2023, the Supreme Court of the United States vacated a case over whether a self-proclaimed “tester” had standing to bring Americans with Disabilities Act (ADA) claims against a hotel that she did not plan to visit, finding the case was moot without addressing the highly-anticipated standing issue.

Quick Hits

The Supreme Court vacated an ADA case against a hotel by a plaintiff who did not intend to stay at the hotel as moot despite the hopes of the business community that it would reduce the overwhelming number of ADA lawsuits.
The decision did not address whether such a ‘tester’ plaintiff has standing under the ADA except to say the issue is still alive and without providing any indication for how the Supreme Court or any other court will resolve the tester standing issue going forward.
A concurring opinion by Justice Thomas suggested that the plaintiff lacked standing because the only injury she suffered was so-called “informational injury” that is not protected by the ADA.
The Supreme Court vacated Acheson Hotels v. Laufer as moot but said the circuit split over whether “testers” have standing “is very much alive.” The high court further vacated the First Circuit Court of Appeals ruling that the plaintiff, Deborah Laufer, who uses a wheelchair, did have standing to bring ADA claims.

Still, the ruling failed to answer key questions about whether testers, individuals who seek out potential claims for discrimination violations against businesses, have standing to bring such claims amid a legal strategy to barrage businesses with tester lawsuits that often allege mere technical rights violations with a goal of extracting settlement payouts.

Despite once providing hope that the Supreme Court saw the Laufer case as a vehicle for reducing the overwhelming number of ADA lawsuits, including website accessibility lawsuits, when it accepted the case in March 2023, the dismissal of the case as moot does not offer relief for the business community and provides virtually no indication for how this Court (or any other court) will resolve the tester standing issue going forward.

Laufer, a self-proclaimed tester plaintiff who combed through various hotel websites searching for potential ADA violations, alleged that the website for The Coast Village Inn and Cottages in Maine, which was formerly owned by Acheson Hotels, LLC, did not provide sufficient information about its accessible accommodations in violation of Title III of the ADA and relevant U.S. Department of Justice regulations.

After the case was accepted by the Supreme Court, Laufer voluntarily dismissed her suit and asked the court to dismiss the case as moot. During oral arguments in October 2023, the justices questioned whether Laufer dropping her suit in addition to the facts that Acheson Hotels had already sold the hotel in question and the hotel’s current website is currently compliant with Title III, did not render the case moot.

But Acheson Hotels argued that the high court should decide the important standing questions while the issue was briefed and before the court as another appropriate case might not reach the high court anytime soon.

In the high court’s decision, Justice Amy Coney Barrett, stated that while the Court was “sensitive to Acheson’s concern about litigants manipulating the jurisdiction of” the Supreme Court, they were “not convinced … that Laufer abandoned her case in an effort to evade” the Court’s review. Still, Justice Barrett noted that the Court “may exercise [its] discretion differently in a future case.”

Justice Clarence Thomas stated in a separate concurring opinion that he would not dismiss the case as moot and would find that Laufer lacks standing to bring ADA claims. Justice Thomas argued that Laufer did not allege a violation of her rights under the ADA because “the ADA prohibits only discrimination based on disability—it does not create a right to information.

Justice Thomas distinguished Laufer’s claim from that in the 1968 Supreme Court case in Havens Realty Corp. v. Coleman, in which the high court held, in addressing the Fair Housing Act, that a “dignitary harm” a tester may experience from witnessing discrimination is an adequate harm to establish standing.

Justice Thomas argued that in Havens Realty, “a black tester” who was told there were no apartments available when a “white tester” was told there were “vacancies,” had standing because he had been “personally denied that truthful information.” The situation in that case “thus has no bearing on Laufer’s standing as a tester of compliance with the ADA, which provides no such statutory right to information,” Justice Thomas stated.

Next Steps

With the Supreme Court declining to address tester standing, the issue and broad circuit split remains open. At this time, it is unclear when the high court will have another opportunity to address it, and, if it does, if the plaintiff will effectively moot the case again by abandoning the claim that made its way to the Court. Additionally, while Justice Thomas’s concurrence suggested that Laufer did not have standing based on the facts of her case, the opinion did not reject “dignitary harm” as a basis for standing under Havens Realty.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more news on Supreme Court ADA decisions, visit the NLR Civil Rights section.

Complying With New Federal Pregnant Workers Fairness Act, PUMP for Nursing Mothers Act

The new Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP For Nursing Mothers Act) were adopted when President Joe Biden signed the Consolidated Appropriations Act, 2023 on Dec. 29, 2022.

PWFA: Pregnancy Finally Given Disability-Like Protection

The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.

Like the Americans with Disabilities Act (ADA), the PWFA includes the obligation to provide reasonable accommodations so long as they do not impose an undue hardship. Many courts have determined that pregnancy alone was not a disability entitled to accommodation under the ADA. Under the PWFA, employers will be required to provide reasonable accommodations to employees and applicants with known temporary limitations on their ability to perform the essential functions of their jobs based on a physical or mental condition related to pregnancy, childbirth, and related medical conditions.

The PWFA adopts the same meaning of “reasonable accommodation” and “undue hardship” as used in the ADA, including the interactive process that will typically be used to determine an appropriate reasonable accommodation.

The PWFA provides that an employee or their representative can make the employer aware of the employee’s limitations. It also provides that an employer cannot require an employee to take a paid or unpaid leave of absence if another reasonable accommodation can be provided. Of course, that does not mean the employee gets the accommodation of their choice. The statute provides a defense to damages for employers that, in good faith, work with employees to identify alternative accommodations that are equally effective and do not cause an undue hardship.

Practical Advice for PWFA Compliance

  1. Employers do not have to have a policy for every rule or practice that applies in the workplace. However, if an employer has a reasonable accommodations policy, that policy should be reviewed and updated, as necessary.
  2. Human resources professionals are not the only ones who need training. If managers are not trained as well, they may unwittingly say something in response to an employee’s question that is inconsistent with your policies and practices.
  3. Create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process should be similar to the ADA process, including requesting supporting documentation from the treating healthcare provider. Have employees in states or cities that have adopted versions of the pregnant workers fairness law or other similar laws that are more generous than the federal PWFA? The federal PWFA does not preempt more generous state and local laws. Therefore, any policy, practice, or form may need to be modified depending on where employees are located. As an example, some city and state laws, except in specific circumstances, prohibit employers from requesting medical documentation to confirm an employee’s pregnancy, childbirth, or related medical conditions as part of the accommodation process.
  4. Like under the ADA, when an employee requests an accommodation under the PWFA, Human resources professionals should think about how to make this work, not this will never work. This simple shift in approach makes finding a reasonable accommodation that does not impose an undue hardship on operations more likely.

PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act expands existing employer obligations under the Fair Labor Standards Act (FLSA) to provide an employee with reasonable break time to express breast milk for the employee’s nursing child for one year after the child’s birth. The employer obligation to provide a place to express milk shielded from view and intrusion from coworkers and the public (other than a bathroom) continues.

Except for changes to available remedies, the amendment to the FLSA took effect on December 29, 2022. The changes to remedies will take effect on April 28, 2023.

What Changed Under PUMP for Nursing Mothers Act

The PUMP for Nursing Mothers Act covers all employees, not just non-exempt workers. The break time may be unpaid unless otherwise required by federal or state law or municipal ordinance. Employers should ensure that non-exempt nursing employees are paid if they express breast milk during an otherwise paid break period or if they are not completely relieved of duty for the entire break period. Exempt employees should be paid their full weekly salary as required by federal, state, and local law, regardless of whether they take breaks to express breast milk.

With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a 10-day cure period before filing a suit.

Employers with fewer than 50 employees can still rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense. Crewmembers of air carriers are exempted from the law. Rail carriers and motorcoach services operators are covered by the law, but there are exceptions and delayed effective dates for certain employees. No similar exemption is provided for other transportation industry employers.

Practical Advice for PUMP for Nursing Mothers Act Compliance

  1. Educate the HR team and front-line managers on the update to the law and refresh them on the process for providing break time and private spaces to express breast milk.
  2. Like the PWFA, the law does not preempt state law or municipal ordinances that provide greater protection than provided by the PUMP for Nursing Mothers Act. Depending on where employees are located, policies, practices, and the private space provided to express breast milk may need to be modified.
  3. Creativity is the key to being able to come up with staffing solutions and private spaces for nursing mothers to express breast milk. Nothing in the law requires employers to maintain a permanent, dedicated space for nursing mothers. A space temporarily created or converted into a space for expressing breast milk and made available when needed by a nursing mother is sufficient if the space is shielded from view and free from intrusion from coworkers and the public. In other words, allowing an employee to use an office with a door that locks would be convenient, but not practical for many worksites. Depending on the workplace settings, privacy screens, curtains, signage, portable pumping stations, and partnerships with other employers to provide private spaces for nursing mothers are all possibilities.

For more election & legislative news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2023

ADA Compliance for Law Firm Websites in 2022

Legal reasoning involves applying the law to the facts to determine the rights and duties of those involved in a situation. Lawyers frequently take the position that the application of rules should settle disputes and that policies will be considered, if at all, only when there is a high degree of uncertainty surrounding the applicability of the rule. The lawyer might take the position that it is always preferable to seek the result that would further the underlying policies, even if that result would be contrary to the clear language of the rules.

But what if no explicit rules currently exist?

That is the issue with website compliance under the Americans with Disabilities Act (ADA). The Act does not offer specific guidelines to follow; however, websites are expected to be easily accessible to everyone, including those who are disabled. The failure to create an ADA-compliant website could expose an organization to discrimination lawsuits, financial liabilities, and severe damage to its reputation.

What is the ADA?

The ADA compels certain businesses, including banks, hotels, restaurants, public transit, law firms, and others to make accommodations for people with disabilities. According to the National Law Review, the Act is divided into three parts:

  • Title I prohibits employers from discriminating against employees based on disability and requires them to provide reasonable accommodation to certain employees under specific circumstances.
  • Title II covers state and local governments.
  • Title III covers “places of public accommodation,” which the ADA does not define, but are generally private businesses or organizations that provide goods, services, facilities, privileges, or accommodations to the public. These places commonly include schools, restaurants, health care providers, social service agencies, law firms, and more.

The ADA is commonly associated with physical locations and the accommodations that certain businesses must make for people with disabilities, which include wheelchair accessibility, reserved parking, and service animals. Companies that fall under ADA Title I and operate 20 or more weeks per year with at least 15 full-time employees, or Title III – those that fall under the category of public accommodation – must be ADA-compliant.

Although physical “brick-and-mortar” locations are nearly always considered places of public accommodation, the debate is ongoing as to whether a business’s website is a place of accommodation. If so, the digital content must be accessible to all users.

A law firm website must be designed so that those who are disabled can access it easily to comply with ADA requirements. While there are no well-defined regulations that describe precisely what an ADA-compliant website should include, businesses that fall under ADA Title I or ADA Title III are required to develop a website that offers “reasonable accessibility” to people with disabilities.

Compliance Tools & Plugins

Because the ADA doesn’t offer specific guidelines for website compliance, many organizations follow the Web Content Accessibility Guidelines 2.0 (WCAG), updated to 2.1 in 2018. While WCAG isn’t a legal requirement, its requirements have been followed in the European Union and other nations since 1999 and still serves as a reference for businesses that want to improve accessibility to their website.

Under WCAG 2.1, website accessibility concerns generally fall into four groups. These include issues that are:

  • Perceivable – issues that affect users’ ability to locate and process the information on a website, e.g., many visually-impaired individuals use screen readers to distinguish between the text and the background to help them navigate online content.
  • Operable – challenges that impair users’ ability to navigate a site, e.g., functions and navigations such as online forms should be accessible via keyboard-only commands, and users who need additional time to complete them should be allowed to do so.
  • Understandable – users should be able to comprehend the information on the site, e.g., error messages that provide an explanation and directions for correcting an error should be offered.
  • Robust – can be interpreted by various devices and platforms according to the varying needs and abilities of users, e.g., the alt text that should pop up to let users know what it is when read by assistive technology when they hover over an image.

Here are more suggestions regarding what to include to help ensure ADA website compliance:

  • “Alt” tags for every media file and map
  • Descriptive HTML tags for online forms
  • Hyperlinks with descriptive anchor text
  • “Skip navigation” links on all website pages
  • Heading tags to organize text
  • Accessible PDF files
  • Subtitles, transcripts, and audio descriptions for videos
  • Accessible fonts for all applications
  • HTML tables with column headers, row IDs, and cell information
  • Captions written in English for audio files
  • Call-to-action buttons with easily accessible names and ARIA labels
  • A website accessibility policy
  • Easy to find contact information

Meeting these guidelines will make a firm’s website more accessible to those with vision or hearing impairments, as well as cognitive, language, or learning disabilities.

Court Rulings Regarding Website ADA Compliance

According to the American Bar Association (ABA), the number of accessibility-related lawsuits filed against websites has increased dramatically in recent years. Plaintiffs are basing these lawsuits on two legal theories:

  1. Title IIIs “equal access and general nondiscrimination mandate
  2. A requirement that places of public accommodation must provide auxiliary aids and services as necessary (for no extra charge)

Although neither Title III nor its regulations mention websites and mobile applications, the phase “auxiliary aids and services” includes “accessible electronic and information technology,” which covers websites and mobile apps.

ADA Title III Lawsuits Filed Each Year Graph
Image by Seyfarth via adatitleiii.com

A recent ABA analysis of court filings related to ADA website compliance found:

  • Federal courts across the country were inundated with more than 8,000 website accessibility lawsuits between 2017 and 2020.
  • In 2020, three states – New York, Florida, and California – brought more than 85 percent of all the ADA website compliance lawsuits.
  • Since 2018, website and mobile app accessibility disputes have accounted for approximately 20 percent of all ADA Title III cases initiated in federal courts, which now regularly exceed 10,000 suits each year.

These statistics do not consider a significant number of website and mobile app cases pursued in state courts, cases settled before filing in court, and DOJ enforcement proceedings that are resolved prior to court filing.

Here are some examples of court rulings related to ADA compliance and websites:

Gil v. Winn-Dixie Stores Inc.

In June 2107, a Florida court ruled in favor of a blind plaintiff who brought an ADA violation lawsuit against Winn-Dixie. The man claimed that aspects of the supermarket chain’s site weren’t compatible with screen readers, leaving him unable to order his medications online or download rewards cards. The trial court agreed that the website was inaccessible to those with impaired vision and ordered that it be brought into compliance with the WCAG 2.0 Level AA.

Although Winn-Dixie complied with the court order, in April 2021, the Eleventh Circuit Court of Appeals overturned the trial court’s decision, finding that Winn-Dixie was not in violation of the ADA because it did not need accessibility aids to conduct business. After that, however, Winn-Dixie posted an accessibility statement on its website that commits to adhere to WCAG 2.0 AA by using testers from the disability community to check the accessibility of their website periodically.

Robles v. Domino’s Pizza

Domino’s Pizza lost a website accessibility lawsuit in 2019 after years of exhaustive litigation when a federal district court in California granted the plaintiff’s motion for summary judgment after it determined that the website was indeed not fully accessible. The court ordered Domino’s to make its website compliant with the WCAG 2.0 to connect customers to the goods and services of Domino’s physical restaurants.

The court held that the ADA applied to Domino’s website and app because the Act requires places of public accommodation, like Domino’s, to offer auxiliary aids and services to make visual materials available to blind individuals. Although customers primarily access the Domino’s website and app outside its physical restaurants, the court found that the Act pertains to the services of public accommodation, not services in a place of public accommodation.

Andrews v. Blick Art Materials

In 2017, Victor Andrews, who is blind, filed a lawsuit against Blick Art Materials for website inaccessibility. Andrews alleged that because Blick’s website was inaccessible, he could not navigate and purchase items on the defendant’s website independently. When Blick made a motion to dismiss the lawsuit, Judge Jack Weisenstein denied it and made this statement:

Today, internet technology enables individuals to participate actively in their community and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the ADA espoused by Blick, which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.

The ruling in this case and others illustrates that businesses need to consider their websites equivalent to a place of public accommodation, which puts them at risk of being sued, even without explicit web accessibility regulations.

Latest DOJ Guidelines

In 2010, the Department of Justice (DOJ) launched a rulemaking process to address ADA requirements for website accessibility, including technical standards for accessible websites. However, that effort stalled for seven years during the Obama administration (even though the administration continued to pursue investigations and enforcement actions against businesses with inaccessible websites).

The Trump administration abandoned the process to interpret the ADA entirely in 2017. In 2018, the DOJ revealed that it would not give official guidance regarding website accessibility under the Act, releasing this statement:

The Department is evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.

Since the DOJ’s withdrawal, the number of lawsuits involving website accessibility increased dramatically, raising awareness regarding website accessibility among businesses but also causing confusion surrounding what features an ADA-compliant website should include. As a result, numerous website accessibility consulting companies emerged promising inexpensive solutions. However, some have been challenged in court.

In June 2018, some bipartisan members of the U.S. House of Representatives sent a letter to Attorney General Jeff Sessions encouraging the DOJ to release clear website accessibility regulations to diminish the unclear nature of current legislation. On September 25, 2018, the DOJ responded by stating that, at this time, the DOJ would not be issuing web accessibility regulations under the ADA: “The Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.”

In March 2022, the DOJ issued further web accessibility guidance under the ADA. The “new” guidance references both the WCAG – which are voluntary – and Section 508 standards, which set standards for federal websites, and indicates that the DOJ supports the notion that sites of public accommodation must be accessible, and in the absence of explicit regulations, websites can be flexible in how they choose to comply with the ADA’s requirements. However, the guidance does not clarify what such flexibility or choice entails and– not necessarily the direction regulation-seekers are looking for, since it provides no substantially new information regarding the vagueness of website accessibility requirements under the ADA.

Final Thoughts

As accessibility regulations for websites remain unclear, it can be easy for organizations to assume that they cannot be sued for noncompliance. However, with no specific standards to follow, law firms and other businesses must do their best to interpret the ADA, practice website accessibility as they see fit, and try to avoid website accessibility-related lawsuits.

One more thing to consider: ambiguity runs both ways, and even though an organization might think its website is accessible, a disabled person might think otherwise, providing the grounds for a lawsuit. Organizations aren’t granted immunity simply because of a lack of clarity in legislation. Instead, uncertainty allows for interpretation by anyone, including the courts.

This article was authored by Jan Hill of Lawmatics.

For more business of law legal news, click here to visit the National Law Review.

©2022 — Lawmatics

OCR Announces $300,000 Settlement Related to Improper Disposal of Physical PHI

On August 23, 2022, the U.S. Department of Health & Human Services, Office for Civil Rights (“HHS”) announced that it had settled a case involving the disposal of physical protected health information (“PHI”).

OCR alleged that, on March 31, 2021, a specimen containing PHI was found by a third-party security guard in the parking lot of the New England Dermatology and Laser Center (“NEDLC”). The PHI included patient name, patient date of birth, date of sample collection, and the name of the provider who took the specimen, in violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).

As part of the settlement, NEDLC agreed to pay HHS $300,640. According to NEDLC’s Resolution Agreement and the Corrective Action Plan, there were two potential violations by NEDLC. First, NEDLC allegedly failed to maintain appropriate safeguards to protect the privacy of PHI,” as required by 45 C.F.R. § 164.530(c). Second, NEDLC allegedly permitted the impermissible disclosure of PHI, in violation of Rule 45 C.F.R. § 164.502(a). The Corrective Action Plan requires NEDLC to develop, maintain and appropriately revise written policies and procedures in accordance with HIPAA.

Several highlights of the settlement include:

  1. Changes to Policies and Procedures. NEDLC must develop, maintain and revise, as necessary, its written HIPAA policies and procedures, and provide such policies and procedures to HHS for review and approval. NEDLC also must assess, update and revise, as necessary, such policies and procedures at least annually, or as needed, and seek HHS’s approval of the revised policies and procedures.
  2. Designation of Privacy Official. NEDLC must designate a privacy official who is responsible for the development and implementation of NEDLC’s HIPAA policies and procedures, and a contact person or office who is responsible for receiving relevant complaints.
  3. Training Requirements. NEDLC must provide HHS with training materials for its workforce members and seek HHS’s approval of such training materials. NEDLC must also distribute the HIPAA policies and procedures to its workforce members and relevant business associates, and obtain a written compliance certification from all such individuals. NEDLC must provide HIPAA training for new workforce members, and all workforce members at least every 12 months. Each workforce member must certify, in electronic or written form, that they received training. NEDLC must review the training at least annually, and update the training where appropriate. NEDLC must promptly investigate, review, report to HHS, and sanction any workforce member that does not comply with its HIPAA policies and procedures.
  4. Implementation Report and Annual Report.  NEDLC is required to submit to HHS a written report summarizing the status of its implementation of the requirements provided set forth in the settlement, and annual compliance reports.

For more Health Care legal news, click here to visit the National Law Review.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.

Alcohol Suppliers Hit with ADA Website Accessibility Lawsuits

The increasing popularity of online shopping is placing e-commerce businesses—specifically those in the alcohol beverage industry—in legal crosshairs. In lockstep with a recent uptick in website accessibility cases, plaintiff firms are sending pre-suit demand letters to alcohol suppliers and, in some cases, even filing a state or federal court lawsuit. These lawsuits—which are typically filed in California or New York—involve claims that a supplier’s website is not accessible to individuals who are blind in violation of Title III of the Americans with Disabilities Act (ADA) and related state laws. In these cases, plaintiffs seek attorneys’ fees, damages (only under state law) and injunctive relief that would require the website to conform with the Web Content Accessibility Guidelines (WCAG) standards, which have been broadly adopted by courts and regulators.

To prevail on a website accessibility claim, plaintiffs must first show that a defendant is a private entity that owns, leases or operates a “place of public accommodation.” Courts, however, are split on what it means for a website to be considered a place of public accommodation under Title III of the ADA. While some jurisdictions require that there be a “physical nexus” between the website and a brick-and-mortar store, other jurisdictions have permitted these cases to go forward against a website-only company that does not own or operate any physical retail location.

In addition to establishing that the supplier’s website is a place of public accommodation, the plaintiff must satisfy certain jurisdictional requirements which will depend upon whether products can be purchased directly from the website as well as whether the supplier ships to the state in which the suit was filed. Leveraging these defenses (among others) will be critical when it comes to either convincing the plaintiff to withdraw the claim, filing a motion to dismiss or achieving an early resolution on favorable terms.

Due to the rise in these website accessibility lawsuits, we encourage industry members to take a proactive approach:

  1. Train personnel on accessibility requirements and WCAG standards.
  2. Test the website against WCAG standards (through independent consultants or user testing).
  3. Retain testing documentation to demonstrate that users with disabilities can fully use the website.
  4. Assess potential areas of non-conformance with WCAG standards.
  5. Work with internal/external technical teams to implement accessibility features into the website.
  6. Develop an accessibility policy that informs users about the company’s accessibility practices.
  7. Consider including a link to the website accessibility policy on every webpage, including a reporting option that is appropriately routed to address accessibility issues.
  8. Regularly audit the website to assess its level of accessibility (particularly after website updates).
  9. Engage legal counsel to minimize litigation risk associated with website accessibility issues, including whether the ADA is applicable to the company’s website in light of the current state of the law.

Article By Jeremy White and Alva C. Mather of McDermott Will & Emery

For more biotech, food, and drug news, click here to visit the National Law Review.

© 2022 McDermott Will & Emery

Return to Work Considerations – COVID and the ADA

Employers are contending with difficult challenges unlike any time in modern history. Even though many employees, especially in the manufacturing industry, returned to work after working from home during the COVID pandemic, the effects of the increased flexibility seen during the COVID era linger. Many employees enjoyed the benefits of working from home during the last two years, even if only part-time, and do not want to give up the benefit. By contrast, and especially as COVID restrictions ease, employers often desire their workforce return to work in a more consistent and routine capacity. These tensions are further complicated by an extremely competitive labor market. Recruiting and retaining employees is a challenge in the current environment. Against this backdrop, prudent employers will keep in mind employment law considerations when developing return-to-work and work-from-home policies.

Where should an employer look to determine what accommodations it should make for an employee who wishes to work from home, either due to a COVID diagnosis and/or a condition that places the employee at a heightened risk for severe COVID? Early in the pandemic, local or state health orders answered such questions regarding COVID-related leave. As the pandemic continued, many of those local health orders were rescinded or expired. As a result, employers are left without clear local guidance. When local requirements are of no assistance, employers should look to CDC guidance for quarantining and isolating guidelines.

In addition, employers should keep in mind that COVID may qualify as a “disability” depending on the symptoms and their severity. If an employee tests positive for COVID and is experiencing symptoms that require an absence from work that is longer than the CDC recommended quarantine period, employers should involve legal counsel to analyze whether the employee’s COVID diagnosis constitutes a disability under the ADA. If it does constitute a disability, the employer is then required to engage in the interactive process under the ADA with the employee to determine whether a reasonable accommodation for the disability can be made. Leave can be an accommodation under the ADA, as can working from home, in certain circumstance and for certain roles.

Likewise, some disabilities may heighten the risk of severe COVID symptoms. In the event that such a disabled employee requests an accommodation related to this heightened risk of COVID, the employer should treat the request as it would any request for accommodation under the ADA. As always, employers should seek legal counsel and check local requirements regarding COVID leave when considering accommodations for employees in these circumstances.

Employers have many competing and challenging considerations when determining a company’s return-to-work policy. While the labor shortage, industry, and specific role considerations certainly play a part in those decisions, employers should not lose sight of the ADA’s additional requirements. The ADA may play a role on an individual level and affect whether an employee may seek leave, work from home, or is entitled to other accommodations related to a COVID diagnosis or high-risk factors.

Article By Felicia S. O’Connor of Foley & Lardner LLP

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Foley & Lardner LLP

Disability in the Workplace: The Key to Equal Access and Accommodations

The month of October is designated as National Disability Employment Awareness Month (NDEAM) to educate the public about the issues faced by people with disabilities in pursuing, obtaining, and keeping employment. 

There are approximately 5.5 million employees in the United States who have some type of disability, according to the U.S. Bureau of Labor Statistics, and these employees account for at least 4% of the employed population. It is likely that almost all large employers have had disabled employees at some point in time. This has not always been the case, however. Until the passage of the Americans With Disabilities Act (ADA) in 1990, disabled persons in the United States were often denied employment opportunities. And even today, despite the passage of the ADA, there are millions of individuals with disabilities who cannot find meaningful employment despite their capabilities and skills.

The Rehabilitation Act of 1973 was the first legislation to address the idea of equal access for individuals with disabilities through the removal of architectural, employment, and transportation barriers. But the Rehabilitation Act only reached those businesses and employers who received federal funding — the vast majority of businesses were not impacted by it. But the advances created by the Rehabilitation Act marked the first time that the exclusion and segregation of persons with disabilities was recognized as unlawful discrimination. The Rehabilitation Act recognized that although there are major physical and mental variations in different disabilities, people with disabilities as a group faced similar discrimination in employment, education, and social access.

Thus spurred on by the advances achieved through the Rehabilitation Act, the disability rights community was determined to expand these rights to the larger general population. Their efforts culminated in the signing of the ADA in 1990, which is a watershed event in U.S. history. The ADA is premised on a basic presumption that people with disabilities want to and are capable of working, want to be members of the community, and that the exclusion and segregation of people with disabilities would no longer be tolerated in our society.

Although the ADA reaches many parts of our lives, it has brought profound changes to the workplace. No longer is it legal for employers to refuse to hire applicants with disabilities, terminate employees who becomes disabled, or otherwise treat disabled employees differently than other employees in the terms and conditions of employment. And not only must employers treat disabled employees equally, the ADA requires them to affirmatively accommodate their disabilities in order that the disabled workers can participate equally with other employees in the workplace.

The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities. The ADA defines a physical impairment as a physiological disorder that affects a body system and a mental impairment as a psychological or mental disorder, such as emotional or mental illness, developmental disorders, and learning disabilities. An impairment that is episodic or in remission, such as cancer or HIV, is a disability if it would substantially limit a major life activity when active. Major life activities include almost everything we do, such as seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Employers are required under the ADA not only to not discriminate against disabled employees but to also provide reasonable accommodations to them so they can perform the essential functions of their jobs. A reasonable accommodation is a modification or adjustment to a job or to the work environment that enables an individual with a disability to have an equal opportunity not only to get a job, but to successfully perform their job tasks to the same extent as people without disabilities. Reasonable accommodations should not be viewed as “special treatment,” and they often benefit all employees. Examples of reasonable accommodations include making existing facilities accessible, job restructuring; part-time or modified work schedules, acquiring or modifying equipment, changing training materials or policies, and providing qualified readers or interpreters. Many job accommodations cost very little and often involve minor changes to a work environment, schedule, or work-related technologies.

Employers should always engage a disabled employee in a discussion to find a mutually acceptable reasonable accommodation that will permit the employee to perform their job but not create an undue hardship on the employer. Although employers do not necessarily have to provide the accommodation requested by the employee, they should take into account the employee’s wishes and attempt to accommodate unless such an accommodation would create an undue hardship. There are as many accommodations as there are individuals with disabilities, and the employer’s responsibility is to make sure they have looked at all reasonable accommodations before deciding that providing an accommodation would be an undue hardship to the employer. The undue hardship standard is very high and should be used very sparingly and only when all other accommodation efforts have been exhausted.

In conclusion, the passage of the Rehabilitation Act and the ADA have provided great benefits to our society and have given opportunities to millions of individuals who in the past would have been unfairly and discriminatorily excluded from the workforce.

This article was written by Debbie Whittle Durban of Nelson Mullins law firm. For more articles about employee accommodation, please visit here.

COVID Quarantine + Surge in eCommerce = … ADA Discrimination Claims?!

While much about COVID-19 and its long-term impact on businesses and the economy is unknown, its effect of a worldwide increase in a reliance on digital means to engage in business transactions is undeniable and unlikely to decrease as we move forward.

This means all organizations – commercial businesses, nonprofits, educational institutions, healthcare entities, and professional organizations – need to consider whether this new reliance on digital means of consumer interactions creates previously unconsidered risks and liabilities to their operations.

What?! – Website Discrimination Regulations?

The Americans with Disabilities Act (ADA), which was enacted to prevent discrimination against people with disabilities in locations generally open to the public, applies to websites and other digital communication means, such as mobile sites and mobile applications.

Organizations, institutions, businesses, and other establishments with websites, mobile sites, and mobile applications that are subject to the ADA must provide accommodations to people with disabilities so that they can have the same level of access to the online digital content and services as everyone else.

Which Businesses are Subject to ADA?

Organizations, institutions, businesses, and other establishments that have either (i) 15 or more employees (Title I Employers) or (ii) offer public accommodations (regardless of the number of employees) to consumers (Title III Public Accommodations) must maintain ADA compliant websites (traditional and mobile) and mobile applications.

Many businesses with more than 15 employees are aware of the requirement to be ADA compliant in its spaces of brick and mortar public accommodations, but are unaware of the requirement and risk of not having an ADA compliant digital presence.  If an organization has more than 15 employees (public accommodations offered or not), it must have an ADA compliant website.

It is Title III – Public Accommodations – that often ensnares smaller businesses such as healthcare providers, law offices, and small or start-up businesses that have fewer than 15 employees and do not offer the traditional public accommodations (such as retail space) yet have other public accommodations such as offices or conference meeting areas.  If an organization maintains a public accommodation for its patrons (regardless of the number of employees), it must have an ADA compliant website.

What Does Compliance Require?

There is no legislation that directly sets out the technical requirements of website accessibility.  There are, however, the WCAG private industry standards, developed by technology and accessibility experts, which have been widely adopted, including by federal agencies. The current guidelines are the WCAG 2.1 Guidelines, and it contains three levels of accessibility –A, AA, and AAA accessibility.  Federal websites are required to meet level AA accessibility.

There are four Principles to WCAG accessibility for those with disabilities (e.g., hearing impairment, seeing impairment, cognitive impairment, mobility issues, etc.):

  1. Perceivable: Information and user interface components must be presented in a way that allows a user to perceive the content (e.g., recognize photos).

  2. Operable: User interface components and navigation must be operable (e.g., dropdowns identifiable).

  3. Understandable: Information and the operation of the user interface must be understandable (e.g., form completion).

  4. Robust: Content must be robust enough that it can be interpreted by a variety of user agents (e.g., assistive technologies)

It is worth noting that it is not the use or inclusion of specific technologies, such as those that amplify words or offer audible versions of content, which is required for compliance.  The requirement for compliance is that businesses offer websites and other digital platforms that are robust enough to provide equally perceivable, operable, and understandable access to all consumers through the consumer’s use of these technologies (i.e., digital platforms that will interact with these specific technologies as provided and used by the consumer).

Is Compliance Enforced?

ADA website compliance litigation is a regular occurrence and is expected to rise as all consumers become more and more reliant on websites and mobile applications to conduct business.  These cases of enforcement span a number of industries – Real Estate (Zillow), Retail (Banana Republic), Entertainers (Beyoncé), and Restaurants (Domino’s Pizza) to name a few recognizable, well-defended defendants – and many resulted in federal fines and compulsory ADA compliance.

Most recently, a case against Domino’s Pizza made clear:

  • ADA applies to websites and mobile applications as public accommodations.
  • Businesses have been “on notice” since 1996 that their websites must be in ADA compliance and effectively communicate with people with disabilities.
  • The lack of specific requirements does not absolve a business from its obligations.

What are the Best Ways to Mitigate Risk?

When building a website, or assessing an existing one for compliance, use the WCAG 2.1 Guidelines and its four principles.  Many marketing professionals and website hosting platforms can provide templates that will assist with ADA compliance.  There are also companies that specialize in accessibility compliance that can review and test the website, mobile site, and application.  Businesses should regularly assess their website for compliance as it is updated, and content and features are added.

© 2020 Ward and Smith, P.A.. All Rights Reserved.

For more on website ADA compliance, see the National Law Review Communications, Media & Internet law section.