By Stan Hill and Cary Reid Burke

Seyfarth Synopsis: Recently, when affirming summary judgment to the employer in a disability discrimination case, the Fifth Circuit Court of Appeals issued two welcome reminders. First, to pursue a disability accommodation, an employee must actually ask for an accommodation (although not necessarily using any magic words). Second, and just as fundamentally, employees must be awake at work to do their job.

In Clark v. Champion Nat’l Sec., Inc., Case 18-11613 (5th Cir. Jan. 14, 2020), Plaintiff was a personnel manager for Champion National Security, Inc., which provides uniformed security services to other companies. Among other duties, Plaintiff trained the security guards and provided employees with guidance regarding Champion’s policies, including its “alertness policy.”

Plaintiff purportedly suffered from a variety of ailments, including Type-II diabetes. During his employment, Plaintiff requested — and Champion granted — two separate accommodations regarding his diabetes. First, he asked for a refrigerator in his office to store insulin. Second, Plaintiff asked for “flexibility” to be able to leave work to go to doctor’s appointments. Plaintiff did not ask for any other accommodations related to his diabetes during his employment.

Additionally, Plaintiff twice asked to be excused from Champion’s grooming policy, which required all employees to be clean-shaven. The first time he asked to be excused, Plaintiff stated only that he wanted to “grow [a] small beard,” and his request was denied. Three months later, Plaintiff asked again, and submitted a doctor’s note in support of his request that provided he should be excused from the grooming requirement because he “has eczema and dry skin.” Champion granted Plaintiff’s request based on the doctor’s note.

In April 2016 Plaintiff filed a complaint with Champion’s human resources department alleging that he had been harassed based on his purported skin condition. The complaint was investigated, and it was determined that Plaintiff was not harassed.

In August 2016, an employee told Plaintiff’s manager that Plaintiff was closing his office door for long periods of time and could be heard snoring. Not long thereafter, Plaintiff’s manager received an anonymous message that contained a picture purporting to show Plaintiff asleep at his desk. Critically, “lack of alertness at work,” which includes sleeping or appearing to sleep, is an immediately terminable offense. Even so, Plaintiff was not terminated at the time because terminating an employee based solely on an anonymous picture would have deviated from Champion’s practices, which included collecting at least two witness statements.

On December 7, 2017, an employee reported to Plaintiff’s manager that Plaintiff was asleep at his desk. Plaintiff’s manager went into Plaintiff’s office, found him asleep, and took a picture of him. Then, Plaintiff’s manager sent the picture, as well as two employee statements, to human resources. Not long thereafter, Plaintiff woke up — on his own — and did not seem to be in any distress.

Later that same day, Plaintiff received a call from human resources, and was told he was terminated. Thereafter, Plaintiff filed suit, alleging violations of the Americans with Disabilities Act and corresponding state law. The District Court granted Champion’s motion for summary judgment regarding all of Plaintiff’s claims, and Plaintiff appealed.

The Fifth Circuit affirmed. The Court began its ruling with an extended discussion of what constitutes direct evidence of discrimination, which the Court emphasized was “rare.” Direct evidence is a statement or document that shows “on its face that an improper criterion served as a basis . . . for the adverse employment action.” To be considered direct evidence of discrimination, a given statement must be 1) related to the protected class of persons of which plaintiff is a member; 2) proximate in time to the terminations; 3) made by an individual with authority over the employment decision at issue; and 4) related to the employment decision at issue.

Plaintiff set forth two instances of purported direct evidence to support his allegations. Plaintiff’s first argument was that Champion had a generalized knowledge of his diabetes, which the Court held was not direct evidence because it was not a statement at all. Plaintiff also pointed to a statement made by Mays, Champion’s vice president, which presented the Court with a closer question. Specifically, when informed that Plaintiff had been asleep at his desk, Mays responded, “Perfect . . . let him go.” Yet this was not direct evidence either because Mays was not the final decision maker regarding Plaintiff’s termination (which Plaintiff conceded).

Plaintiff’s disability discrimination claim also failed on a McDonnell Douglas indirect evidence theory because he was not a qualified individual with a disability. Specifically, Plaintiff could not perform the essential functions of his job, with or without a reasonable accommodation. As the Court explained, “maintaining consciousness is a basic element of any job.” Accordingly, and given Plaintiff conceded he could not do his job if he was not awake, Plaintiff’s discrimination claim failed.

The Court next turned to Plaintiff’s accommodation claim, which failed because Plaintiff did not set out a reasonable accommodation that would have allowed him to do his job. Even more fundamentally, Plaintiff never requested an accommodation for “loss of consciousness due to diabetes.” Rather, the only accommodation he sought during his employment was to be excused from the grooming policy (which was granted).

Additionally, Plaintiff’s hostile work environment claim failed because Plaintiff could not show that any purported harassing conduct was based on his disability. Instead, his harassment claim was based on his request to grow a beard in contravention of Champion’s grooming policy because he had sensitive skin. Yet Plaintiff’s harassment claim failed because he did not allege that his dry skin constituted a disabling condition, and as a result, any discussions about the same (if such could even be considered harassing), were not based on his alleged disability (diabetes).

Plaintiff’s final claim, retaliation, also failed because Plaintiff could not connect any protected activity with the decision to terminate his employment. To make out the necessary “causal link” between protected activity and an adverse action, Plaintiff had to “show that the employer’s decision to terminate was based in part on knowledge of the employee’s protected activity.” He did not. The only protected activity Plaintiff arguably engaged in when employed was his internal complaint that he had been “harassed” for asking to be excused from the grooming policy. Fatal to Plaintiff’s claim, he did not produce any evidence that his termination was connected to this internal complaint in any way.

Employer Takeaways

The Court’s decision comes as welcome news to employers. Foremost, the Fifth Circuit reaffirms that — except in exceedingly rare circumstances — being awake is an essential job function. Additionally, the onus is on the employee, not the employer, to ask for a job-related accommodation. Of course, once the employee asks for an accommodation, the employer is obligated to engage in the interactive process in good faith. But critically, the employee must still start the process by making the ask.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Katherine F. Mendez, Samantha L. Brooks, Susan Ryan, and Anastacia E. Topaltzas

Seyfarth Synopsis: The Iowa Democratic Presidential Caucus historically signals who the likely Democratic Presidential Candidate will be. As we dive in to the 2020 election season, we explore the potential candidates’ positions on key labor issues. Here, in our second installment, we focus on the candidates’ positions on collective bargaining rights of gig economy workers.

Although the bargaining rights of gig workers has not received much coverage at the televised Democratic debates, the issue has received a lot of attention on the campaign trail and the candidates seem to be competing to win votes from unions.  The issue is also on the minds of employers (particularly in light of a wave of gig worker initiated lawsuits over misclassification) and the minds of the House (the Education and Labor Committee held another hearing in the Future of Work series on February 5, with the topic of “Protecting Workers’ Civil Rights in the Digital Age”). Here is our run-down on where the candidates and President Trump stand.

Michael Bloomberg, Pete Buttigieg, Sen. Amy Klobuchar, Sen. Bernie Sanders, Sen. Elizabeth Warren, and Andrew Yang support the collective bargaining rights of gig economy workers.

Former Vice President Joe Biden, who has referred to himself as a “union man,” supports a crack-down on employee misclassification, but has been vague as to his support of gig workers’ right to bargain.

Sen. Michael Bennet is generally in favor of increasing support for unions and collective bargaining rights, though he has not explicitly stated his opinion on this issue. However, in 2018, when Sen. Sanders introduced a bill that would have codified the “ABC test” to determine whether a worker is an employee (and presumably would have made it easier for gig workers to be considered employees and exercise collective bargaining rights), Sen. Bennet did not sign on (neither did Sen. Klobuchar or Sen. Gabbard).

Rep. Tulsi Gabbard and Tom Steyer have neither campaigned on nor publicized their positions on labor issues, and their positions on the rights of gig workers to unionize are not clear, though Steyer supports an increase in union jobs generally.

Former Gov. Deval Patrick, like Biden, supports increased enforcement to prevent worker misclassification, but has not expressed a position on this issue.

President Donald Trump has not explicitly stated his opinion on this issue, either. However, on April 29, 2019, the U.S. Department of Labor’s Wage and Hour Division issued an opinion letter finding that gig workers were independent contractors and not employees. This – combined with the Trump administration’s perceived roll-back of union and bargaining rights – likely signals that President Trump and his administration would not support the collective bargaining rights of gig workers.

The next installment of our campaign coverage will address the candidates’ positions on minimum wage.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

By Nicholas De Baun and Tara Ellis

Seyfarth Synopsis: On December 23, 2019, District Judge Rosemary Marquez ruled, in connection with a motion to dismiss, that Title VII does protect discrimination based on a person’s transgender status, and that a health insurance plan’s exclusion for gender reassignment surgery may not be “rationally related to a legitimate government interest.”

As we previously blogged, Plaintiff Russell Toomey, a transgendered male, filed suit in early 2019 against his employer, the State of Arizona, after the self-funded health plan provided by the State of Arizona denied Toomey’s request for medical preauthorization for a total hysterectomy. The Plan generally provides coverage for “medically necessary care”, and Toomey’s doctors contended that the hysterectomy was medically necessary, but the Plan denied authorization under an exclusion for “gender reassignment surgery.”

Toomey’s complaint contends that the Plan’s denial of authorization for a hysterectomy was sex discrimination under Title VII and a violation of the Equal Protection Clause. In March 2019, the State of Arizona and two individually named defendants employed by the State of Arizona filed a motion to dismiss Toomey’s complaint.

Magistrate Judge Bowman issued her Report and Recommendation on the motion to dismiss on June 24, 2019. Judge Bowman determined that Title VII does not prohibit discrimination based on a person’s transgender status. However, she decided that Toomey had adequately alleged that the health plan exclusion for gender reassignment surgery disadvantaged a “suspect class”, justifying a heightened level of scrutiny, and that defendants had failed to argue that the exclusion would survive this level of scrutiny.

The parties filed Objections to the Report and Recommendation and District Judge Rosemary Vasquez held oral argument on October 2, 2019. After consideration of the Report and Recommendation, and the parties’ objections and oral argument, Judge Vazquez issued an order denying the motion to dismiss on December 23, 2019.

Judge Vazquez disagreed with Judge Bowman’s recommendation concerning Toomey’s Title VII claim, reasoning that “[d]iscrimination based on transgender status or identity is discrimination based on sex because, but for the individual’s sex, the employer’s treatment of the individual would be different.” Judge Vazquez further highlighted the fact that the health plan’s exclusion of “gender reassignment surgery” “is directly connected to the incongruence between [Toomey’s] natal sex and his gender identity”, thereby “implicat[ing] the gender stereotyping prohibited by Title VII.” Judge Vazquez thus denied the motion to dismiss Toomey’s Title VII claim.

Judge Vazquez agreed with Judge Bowman’s recommendation regarding the non-dismissal of Toomey’s Equal Protection Clause claim. She reasoned that Toomey had alleged facts which could justify a heightened level of scrutiny. Judge Vazquez also noted that even if the Court were to apply rational basis review to Toomey’s Equal Protection claim, Toomey had “alleged facts plausibly showing that the Plan’s exclusion of gender reassignment surgery is not rationally related to a legitimate government interest.”

The question of whether the protections of Title VII apply to transgender individuals is currently before the Supreme Court for consideration, after oral argument on October 8, 2019. However, Judge Bowman denied the Defendants’ Motion to Stay Proceedings Pending the Supreme Court’s decision – thus, it is unclear whether the Supreme Court’s decision on this issue will have any impact in this particular case.

We will continue to watch this case, and will keep you posted of any developments.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

 

By Mark A.Lies, II and Daniel R. Birnbaum

Seyfarth Synopsis: By now, the worldwide health authorities and media have publicized the 2019 Novel Coronavirus (2019-nCoV) (sometimes called Coronavirus) (the “virus” or “disease”) that has been first identified in Wuhan, Hubei Province, China. Although the United States has only experienced several cases of the virus, it is only a matter of time before the disease surfaces in more cases throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

During this webinar program we will inform employers about current information on Coronavirus available from the CDC, WHO, and other health organizations. In addition, attendees will be provided with an overview of the potential legal liabilities associated with employees who may contract the disease. Finally, the program will provide practical recommendations to avoid potential employee exposure from the disease and actions to be taken in the event that an employee actually contracts the disease.

The webinar will take place on Thursday, February 6, 2020, from:

1:00 p.m. to 2:00 p.m. Eastern
12:00 p.m. to 1:00 p.m. Central
11:00 a.m. to 12:00 p.m. Mountain
10:00 a.m. to 11:00 a.m. Pacific

Please Register Here.

If you have any questions, please contact Cassie Peterson at clpeterson@seyfarth.com and reference this event.

Learn more about our Workplace Safety & Environmental practice.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By Linda C. Schoonmaker and Vanessa Rogers

Seyfarth Synopsis: Vaccinations have been widely debated over the past few years, leaving employers unclear about their obligations to accommodate employees whose religious beliefs conflict with them. Recently the U.S. Court of Appeals for the Fifth Circuit issued a decision providing insight into vaccination accommodations and establishing favorable precedent for employers.

Specifically, the Fifth Circuit held that where an employee refused an employer-mandated vaccination and the employer offered a position transfer, the employer had reasonably accommodated the employee, despite the fact that the position had less desirable duties and hours and resulted in a loss in income for the employee. Additionally, the Court held that the employer’s decision to terminate the employee was not retaliatory and the accommodation proposal did not violate the employee’s right to freely exercise his religion, but instead offered him a way to freely exercise it.

Summary of the Case:

In Horvath v. City of Leander, Texas et. al, the plaintiff, an ordained Baptist minister and employee of the City of Leander, Texas (the “City”), objected to vaccinations mandated by the City as a tenet of his religion. Over the years, the City granted the plaintiff flu vaccination exemptions, but his request for an exemption to the TDAP vaccine, which immunizes from tetanus, diphtheria, and pertussis or whopping cough, was denied, and culminated with his employment termination. The Fifth Circuit determined that the City had provided the plaintiff with a reasonable accommodation for his religious beliefs. Specifically, offering to reassign the plaintiff to the positon of code enforcement officer, a position which offered the same pay and benefits and did not require a vaccine, was a reasonable accommodation. The Court was unpersuaded by the plaintiff’s argument that the code enforcement officer position was “the least desirable position” in the department because of its duties and hours (which had normal business hours of Monday to Friday and occasional overtime on Saturdays, compared to the 24-hour shifts of his current position, driver/pump operators) or that the position was unreasonable because the schedule would prevent him from continuing his secondary employment, which would reduce his total income by half.

Relying upon Bruff v. North Mississippi Health Services. Inc., 244 F.3d 495 (5th Cir. 2001), a decision holding that a medical center had offered a reasonable accommodation to a counselor who sought to be excused from counseling on subjects that conflicted with her religious beliefs by allowing her 30 days and employment counselor assistance to find another position that did not conflict with her religious beliefs, the Fifth Circuit in Horvath found that while the plaintiff may prefer the hours and duties of traditional firefighting jobs, “Title VII does not restrict an employer to those means of accommodation that are preferred by employees” nor does the indirect loss of outside income.

Similarly, the Fifth Circuit found in favor of the City on the plaintiff’s retaliation claim, holding that the City had a legitimate, non-retaliatory reason for terminating the plaintiff’s employment, his defiance of a direct order — failure to select an accommodation in lieu of the TDAP vaccine.

Finally, the Fifth Circuit ruled in favor of the City on the plaintiff’ claim of violations of 42 U.S.C. § 1983 premised on violation of his First Amendment Free Exercise rights, finding that the second accommodation offered by the City — that the plaintiff “could remain in his current position if he agreed to wear personal protective equipment, including a respirator, at all times while on duty, submit to testing for possible disease when his health condition justified, and keep a log of his temperature” — did not violate his right to freely exercise his religion. Specifically, the Court found that the respirator requirement was not an official governmental policy as necessary to hold the City liable under § 1983, but one of two accommodations offered to him. Even if the requirement was a policy, the plaintiff’s right to freely exercise his religious beliefs was not burdened by the requirement, instead it provided a means by which the plaintiff could freely exercise his religion while maintaining his current job.

Employer Takeaways

The Fifth Circuit’s decision here is useful for employers navigating the murky waters of employee vaccinations and accommodations. Employers may accommodate religious beliefs which conflict with employer mandated vaccinations by offering employees positions that do not require vaccinations even if the offered position presents “less desirable” duties and hours and even if it results in a loss of outside income. Additionally, an employee’s deliberate refusal to accept a reasonable accommodation, may in fact constitute a legitimate non-discriminatory reason for an adverse action. Last, accommodations which provide options that would enable an employee to freely exercise his religion, such as the one in Horvath, do not violate an employee’s right to freely exercise his religion.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.

 

By Katherine F. Mendez and Samantha L. Brooks

Seyfarth Synopsis: As the 2020 presidential election approaches, both Congress and the presidential candidates are taking notice of future of work issues. A newly formed Congressional caucus aims to address future of work issues with legislation and education.

Employers are keenly aware of the impact that future of work technologies and concepts — including artificial intelligence, the gig economy and worker classification, and other automation technologies — may have on the workplace in the coming years and decades.

Although Congress has not introduced any specific legislation to address potential future of work challenges, on January 15, one month after a Congressional Hearing on the future of work, a bipartisan group of lawmakers launched the Congressional Future of Work Caucus, co-chaired by Congressman Bryan Steil (R-WI) and Congresswoman Lisa Blunt Rochester (D-DE).

According to Congresswoman Blunt Rochester, the Caucus plans to: “develop a clearinghouse of legislation relating the future of work in Congress, get continued participation and education of our members on the various aspects of the future of work, and finally, produce a national strategy that includes legislative wins for our country.”  Blunt Rochester also said that the Caucus “was created to educate Members and their staff, stakeholders, and the public on the challenges and opportunities prevalent in U.S. economy,” including “the growing effects of automation on the workforce, the emerging impact of artificial intelligence on society, the changing nature of the social contract, and the possible disruption & opportunities presented by technology in the U.S. economy.”

Of course, any plans for the Future of Work Caucus could be helped or impeded by the results of the 2020 presidential election. In the coming weeks, we will be reviewing and reporting on the candidates’ positions on future of work issues, including the gig economy and worker classification, gig workers’ collective bargaining rights, worker training and artificial intelligence, and minimum wage and employee benefits. Stay tuned!

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team.

By Jennifer L. Mora and Adam R. Young

Seyfarth Synopsis:  Employers considering a tolerant attitude towards recreational cannabis in the workplace should consider safety hazards and legal liabilities. 

In the heyday of the two-martini lunch, employers regularly tolerated alcohol in the workplace or employees presumably impaired by alcohol returning to work.  Over the succeeding decades, employers began to concentrate on the business and legal liabilities imposed by drug and alcohol use and impairment in the workplace — including increased absenteeism, mistakes, sexual harassment, workplace violence, and accidents/injuries.  Employers also discovered that their insurance companies claimed exemptions for certain claims if the employee that created the issue had been consuming alcohol at work. As a result, employers largely began to adopt policies that prohibited employees from using or being under the influence of alcohol (and drugs) while at work.  Most employers since have prohibited alcohol and drugs entirely or restricted alcohol to occasional company Christmas parties and social functions.

While we have not seen a mainstream resurgence of alcohol consumption in the workplace, we have noticed a distinct trend of some collaborative and creative workplaces, including co-working environments, to expand access to alcohol in the workplace, often with bars and kegs onsite.  Employers who elect to allow “drinking at work” are well-advised to implement policies regarding such use and consider a variety of safety and other issues that could result, including how to handle intoxicated employees, whether to provide transportation for employees to drive home, tracking and limiting consumption, defining the times during the day when drinking is and is not allowed, and handling complaints lodged against employees.  With the legalization of recreational marijuana in many states, some employers with permissive alcohol regimens are confronting whether they will treat marijuana as they treat alcohol.  How will they address workplace use and impairment?

Marijuana is unlawful under federal law and employers have the right to prohibit its possession, use, and impairment by employees in the workplace (or while on company time).  But some employers (often in creative fields) are considering relaxing their prohibitions on cannabis or even allowing cannabis in the workplace.  They often hope to attract newer generations of workers who may have a positive impression of cannabis and its contributions to creative and productive output in the workplace.  Employers must consider — are the liabilities that potentially result when an employee uses cannabis at work the same as or greater than those associated with alcohol use? Can an employer even allow this if it wants to? To what extent “weed at work” starts to become as mainstream as alcohol at work remains to be seen, but there are several considerations that employers might want to ponder.

  • One way in which alcohol and cannabis are the same is in the context of occupational safety hazards. Cannabis is a psychoactive drug that impairs decision-making, motor skills, and response time. As we have previously blogged, according to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are “safety-sensitive,” where an impairment will put the employee, coworkers, clients, or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.
  • Employers subject to the federal Drug-Free Workplace Act cannot allow employees to use any controlled substance in the workplace lest they risk losing their government contract. Although more states are enacting recreational and medical cannabis laws, cannabis still is illegal as a matter of federal law and, thus, employers with government contracts should not consider permitting the use of cannabis or controlled substances at work.
  • Employers may have better control of alcohol consumption at work if they make the alcohol available and have a procedure in place to ensure that only a certain amount of alcohol is consumed. Indeed, some employers use a “kegbot,” which is an app that requires employees to login each time they get a drink, which helps the employer track what and how much the employee drank. Some employers have a bar with a server that tracks and monitors consumption. If an employer allows employees to consume cannabis while at work, there simply is no way for the employer to know the strength of the cannabis being consumed or how much. While well-intentioned, this approach may be inadvisable with cannabis products. The employer providing or dispensing marijuana at work may be committing felonious possession with intent to distribute a Schedule I drug under federal law.
  • Under the Occupational Safety and Health Act’s “general duty clause,” employers must furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.” If an employer knowingly tolerates the use of an illegal and impairing drug, such as cannabis, even for medical purposes, while an employee performs hazardous tasks (e.g., driving a forklift), this might create an impermissibly hazardous environment and potential liability for a General Duty Clause violation. We have not yet seen a similar citation issued by federal OSHA or a state plan.  Some state plans also have regulations that prohibit employees from being under the influence of drugs or alcohol, which could be the basis of a further citation.

Accordingly, employers are struggling to address the new hazards of widespread use of recreational cannabis and its many risks to the workplace.  While not all employers are continuing drug testing for cannabis, employers would be wise to consider the many legal liabilities associated with permitting cannabis in the workplace.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Cannabis Law Practice or Workplace Policies and Handbooks Team.

By James L. Curtis, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis:  First American case reported of deadly new Chinese coronavirus.

The Centers for Disease Control and Prevention (CDC) has indicated that it is closely monitoring an outbreak caused by a new 2019 Novel Coronavirus (2019-nCoV) (coronavirus) first identified in Wuhan, Hubei Province China.

Reuters reports that the virus has claimed nine lives and infected at least 470 people in China. The South China Morning Post reports that the “National Health Commission of China confirmed 900 people are still under medical observation.”  “The outbreak has been linked to Wuhan’s Huanan Wholesale Seafood Market, which has since been closed. Weeks after the market in the city in central China became ‘ground zero’, the authorities said human-to-human transmission played a role in the outbreak.”  The CDC indicates that human-to-human transmissions is likely, but the precise method and likelihood of transmission is unclear.

The CDC announced the first case in the United States in Washington State on January 21, 2020.  The patient travelled to the United States from Wuhan on January 15, 2020.  The patient sought care at a medical facility, where the suspected coronavirus was identified.

As widely publicized, on January 17, 2020, the CDC began implementing public health entry screening at San Francisco (SFO), New York (JFK), and Los Angeles (LAX) airports.  It later added entry health screening at Atlanta (ATL) and Chicago (ORD).  The CDC has also activated its Emergency Operations Center to better provide ongoing support to the coronavirus response.  The CDC is working closely with Washington State and local partners.  A CDC team has been deployed to support the ongoing investigation in Washington State, including potentially tracing close contacts to determine if anyone else has become ill.

The CDC warns travelers in an “Alert – Level 2, Practice Enhanced Precautions,” that:

  • Person-to-person transmission of coronavirus is occurring.
  • Preliminary information suggests that older adults and people with underlying health conditions may be at increased risk of severe disease from this virus.
  • Travelers to Wuhan, China, should avoid contact with sick people, animals (alive or dead), and animal markets.
  • Travelers from Wuhan to the United States, and other countries, may be asked questions about their health and travel history upon arrival.

Employers would be wise to keep abreast of the CDC website updates on this outbreak.  Employers whose employees travel to China for work should take action to notify employees of the health risks, including the latest information from the CDC.  Health services employers who potentially encounter the coronavirus should work with legal counsel to ensure that they have made proper notifications to public health authorities and have appropriately trained and protected their employees from occupational exposures.  If employees are exposed there may be legal implications under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and state workers compensation laws.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team, Workplace Counseling & Solutions Team, or the Workplace Policies and Handbooks Team.

By Michael Wexler, Robert B. Milligan, and Daniel Joshua Salinas

Seyfarth Synopsis:  On Tuesday, January 28 at 12:00 p.m. Central, in the first installment of the 2020 Trade Secrets Webinar Series, Seyfarth attorneys will review noteworthy legislation, cases and other legal developments from across the nation over the last year in the area of trade secrets and data theft, non-competes and other restrictive covenants, and computer fraud. Plus, they will provide predictions for what to watch for in 2020 and provide an overview of the material law changes in Seyfarth’s 2019-2020 Non-Compete Desktop Reference.

Seyfarth attorneys Michael Wexler, Robert Milligan, and Joshua Salinas will address the following topics:

  • Significant new federal and state court decisions and legislation on non-compete and other restrictive covenants that may impact their enforcement
  • Discussion of legislative and regulatory efforts to narrow use of non-competes and how companies should respond and the likelihood and impact of potential federal legislation
  • The Defend Trade Secrets Act and tips for navigating the law and an overview of what we know now that it’s been in effect for more than 3 years
  • Recent trade secret misappropriation decisions
  • Noteworthy data breaches and criminal prosecutions for trade secret misappropriation, data theft, and computer fraud matters and discussion of lessons learned
  • Best practices for updating agreements and policies to adequately protect company assets and trade secrets, including addressing the challenge for multi-state employers of an increasing divergence of state laws

REGISTER HERE

If you have any questions, please contact Colleen Vest at cvest@seyfarth.com and reference this event.

*CLE Credit for this webinar has been awarded in the following states: CA, IL, NJ and NY. CLE Credit is pending for GA, TX and VA. Please note that in order to receive full credit for attending this webinar, the registrant must be present for the entire session.

By Minh N. Vu

Seyfarth Synopsis:  ADA Title III lawsuits flooded federal courts in 2019 and will likely continue to do so in 2020 with new theories for the courts to consider. 

We are still tallying up the end-of-year numbers, but the number of ADA Title III lawsuits filed in federal courts by the end of November 2019 (10,206) exceeded the number of such lawsuits filed in all of 2018 (10,163).  California courts continue to be the busiest with roughly 43% of the lawsuits, with New York and Florida courts taking second and third place with  24% and 18% of the market share, respectively.  With plaintiffs and their lawyers constantly conjuring up new claims, businesses are not likely to see any relief from these types of suits in 2020.

What types of lawsuits are trending now?

Braille Gift Card Lawsuits.  Starting in October of 2019, more than a dozen blind plaintiffs represented by five attorneys have filed at least 243 lawsuits in the Southern and Eastern Districts of New York alleging that retailers and other businesses have violated the ADA and New York state and city laws by failing to offer for sale gift cards that have all the information printed on the cards shown in Braille. These cases are assigned to at least twenty-nine different judges. A firm in southern California has also jumped on the bandwagon, filing Braille gift card lawsuits in California state court and sending out a number of pre-suit demand letters. Most defendants are digging in for a fight so we expect to see many motions to dismiss filed in the first quarter of 2020.

Website and Mobile App Accessibility Lawsuits.  Although we are still tallying the numbers, lawsuits alleging inaccessible websites and mobile apps accounted for at least a fifth of the total number of ADA Title III lawsuits filed in federal courts in 2019. Most plaintiffs in these cases are blind and claim that the websites in question do not work with their screen reader software which reads website content aloud. A much smaller number of plaintiffs are deaf and are suing about the lack of closed captioning for online videos.

Plaintiffs continue to file these website and mobile app accessibility lawsuits, though the rate at which they were being filed seemed to slow down in the fourth quarter of 2020. The change may be attributable to the fact that some of the lawyers who were filing many of these website accessibility suits in New York have turned their attention to Braille gift card lawsuits.

The big news from 2019 on the website accessibility front was the U.S. Supreme Court’s refusal to hear Domino’s appeal from a Ninth Circuit Court of Appeals decision allowing a blind plaintiff to pursue his lawsuit against the pizza chain for having an allegedly inaccessible website and mobile app. Businesses had hoped that the Supreme Court would hear the case and perhaps take some action to curtail the tsunami of website and mobile app lawsuits.

In 2019, Plaintiffs also made significant headway in persuading California state courts that inaccessible websites violate the state’s non-discrimination statute, including one appellate affirmation of a judgment in favor of blind plaintiff. In fact, one California Superior Court judge decided that the ADA applies to websites of businesses with no physical location where customers go. In reaching this conclusion, this California judge rejected federal Ninth Circuit precedent that the ADA only applies to websites of public accommodations with a nexus to a physical location.

Hotel Accessibility Information on Reservations Websites.  A number of plaintiffs filed lawsuits against hotels for allegedly failing to provide sufficient information about the accessibility of their accessible guest rooms and common areas on their websites, as required by the ADA Title III regulations, to allow travelers with disabilities to make informed decisions about whether a hotel meets their needs. In response to this flurry of lawsuits, many hotels have updated their websites to provide the required information. Now some plaintiffs are filing lawsuits alleging that hotels are not making accessible rooms available for sale on websites operated by third party online travel agencies.

Accessible Hotel Room Dispersion.  Title III of the ADA requires hotels to provide accessible rooms in a range of different room types (e.g. rooms with two beds, premium views, suites) so that people with disabilities have room choices that are comparable to those offered to people without disabilities. One plaintiff in particular has filed more than a hundred lawsuits under this theory, and we have no reason to think she will stop in 2020.

Inaccessible Facilities.  Historically the most prolific category for accessibility lawsuits, we have continued to see in the lawsuit filing numbers and in our practice many lawsuits about allegedly inaccessible physical public accommodations facilities such as hotels, retail stores, restaurants, and shopping centers in 2019. We do not expect this to change in 2020.

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Edited by Kristina Launey