By Kristina M. Launey and Myra B. Villamor

Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law – employment law – California’s Fair Employment and Housing Act.

Over the past few years, we have frequently written about the proliferation of demand letters and lawsuits alleging that a business denied a usually blind or vision-impaired individual access to its goods and services because the business’ website was not accessible, in violation of Title III of the Americans with Disabilities Act (ADA) and state laws.

One firm that pursued many web accessibility actions under Title III and California’s Unruh Act (including a success in the Bags N’ Baggage case decided in plaintiff’s favor by a California state court) is now going after employers. In recent demand letters and lawsuits, they are alleging that employment websites are not accessible to blind job seekers, in violation of California’s Fair Employment and Housing Act (FEHA), California’s corollary to Title I of the ADA.

While this blog, and Seyfarth’s Disability Access Team, are focused on disability access issues affecting places of public accommodation that provide goods and services to the general public (not employees, though many of our team members are employment specialists as well), this emerging litigation trend is worthy of our discussion here because it is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs’ attorneys.  But there is one big difference – the legal standard that applies to employment disability discrimination claims is different from the standard applied to disability discrimination claims brought against public accommodations.

Title III is unique from other anti-discrimination statutes in that it requires (with exceptions) businesses take affirmative, proactive measures to ensure individuals with disabilities are afforded equal access to their goods and services. FEHA prohibits discrimination against individuals in employment.  It requires employers, upon notice that an employee or applicant for employment requires a reasonable accommodation to perform the essential functions of his or her job, or to apply for employment, to engage in the interactive process to devise such a reasonable accommodation.  The employer does not need to provide the employee or applicant’s requested accommodation as long as the accommodation provided is effective.

In the cases filed thus far, such as those by Dominic Martin, Roy Rios, and Abelardo Martinez in Orange County and San Diego Superior Courts in California last week, the plaintiffs argue that they are blind residents of California who want to enter the workforce, attempted to apply using the defendant’s online application, but could not because it was inaccessible to individuals with disabilities. They claim the WAVE tool confirmed the website’s inaccessibility (an automated tool like WAVE, while useful, cannot be relied upon to determine whether a website is accessible or not, let alone useable by an individual with a disability).

In these lawsuits, the plaintiffs claim that they twice asked the defendant to remove the barriers and were ignored.  Plaintiffs also claim that removing the barriers would take only a few hours (which anyone who has worked in the website accessibility space knows is rarely if ever possible).  Plaintiffs allege these requests that defendant remove the barriers were requests for reasonable accommodation, though they were sent by the plaintiff’s attorney and not the actual individual seeking employment; thus possibly perceived as litigation demand letters rather than legitimate requests for reasonable accommodation.  The plaintiffs allege that the companies did not respond and that they have a policy to deny disabled individuals equal employment by refusing to remove the barriers on the website.  Each plaintiff alleges only a single legal claim for violation of FEHA, even expressly noting he is not asserting claims for violation of any federal law or regulation.

Will these claims find any success in the courts under the applicable law?  We will be watching.  In the meantime, businesses that have been focusing efforts on consumer-facing websites to mitigate risk under Title III should be aware of this new trend (if you have not already received such a letter).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Disability Access Team.

Edited by: Minh N. Vu.

By Kristina Launey

Last week, a California State Court became the first in the nation to rule that a retailer violated the Americans with Disabilities Act due to a website that is not accessible to individuals with vision-related disabilities.

As we have previously reported, courts have ruled on whether the ADA applies to websites, but have always stopped short – because the cases had usually settled at early stages – of reaching the dispositive factual issue of whether a website actually violated the ADA.

This ruling came on a motion for summary judgment filed by plaintiff Edward Davis’s attorneys, Scott Ferrell of The Newport Trial Group, Victoria Knowles, and Roger Borg. Judge Bryan Foster of the San Bernardino Superior Court ruled that the defendant luggage retailer violated the ADA and corollary California law – the Unruh Act – because plaintiff “presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by defendant [via its website] because of his disability.”  The judge also found sufficient evidence that Title III of the ADA applied to the website because there was a sufficient nexus to defendant’s physical retail store and the website.

The judge ordered the retailer to pay $4,000 in statutory damages under the Unruh Act, finding it undisputed that plaintiff’s access to the website was prevented at the time it was designed. The judge ordered injunctive relief in the form of defendant taking steps necessary to make the subject website “readily accessible to and useable by individuals with visual impairments or to terminate the website”; but provided no detail on whether a certain standard would need to be met to have complied with this injunctive relief order. The plaintiff will also be entitled to attorneys’ fees as the prevailing party, which could be substantial given the discovery and briefing involved in the motion for summary judgment.

This order ironically came during the same week virtually all scientists, practitioners (including me), educators, government officials, companies, advocates, and interested individuals with disabilities were attending digital accessibility’s major annual conference – California State University, Northridge’s 31st Annual International Technology and Persons with Disabilities Conference– just a few hundred miles away from the court.

By Brent I. ClarkErin Dougherty Foley, and Craig B. Simonsen

By Proclamation, President Obama has declared December 2015, to be “National Impaired Driving Prevention Month.” 80 Fed. Reg. 75781 (December 3, 2015).

The President declares that “no person should suffer the tragedy of losing someone as a result of drunk, drugged, or distracted driving….” He notes that drunk drivers kill more than 10,000 people annually, and “about one-third of traffic deaths in the United States involve a driver with a blood alcohol concentration above the legal limit.” Additionally, “driving under the influence of drugs, an increasingly common occurrence, carries the same risks as drunk driving and is just as avoidable.” Driving distracted, including while using a cell phone, can lead to tragic outcomes that are also preventable. The Proclamation provides links to federal materials and resources, including www.Distraction.gov, www.NHTSA.gov/DriveSober, and www.WhiteHouse.gov/ONDCP/DruggedDriving.

There are real issues for employers related to impaired and distracted driving. For instance, we had previously blogged about a United States Court of Appeals for the Eleventh Circuit case that addressed the issue of an employer’s liability for terminating a commercial truck driver who suffered from alcoholism, a condition that is often considered a disability under the Americans with Disabilities Act (ADA).  The focus of the Court’s analysis was on the relevant Department of Transportation (DOT) regulations which provided that a person with a “current clinical diagnosis of alcoholism” was not qualified to drive a commercial motor vehicle.  The regulations did not, however, instruct who would make the final determination of whether an employee had a current diagnosis of alcoholism—the employer or the DOT (or other) medical provider. In this case, following the plaintiff-employee’s leave of absence to receive treatment for alcoholism, he obtained clearance by a DOT medical examiner that he was fit to return to work.  However, the defendant-employer received contrary guidance from the plaintiff’s alcohol treatment counselor, who diagnosed him with “alcohol dependence or alcoholism.”

In another example, we previously blogged about employees using cellphones and other devices while driving. There we noted that the trend of banning all cellphones or other portable devices while driving even where permitted by local law was based on a number of factors. First, there have been a large number of  reported jury verdicts or settlements where companies have been found liable for accidents caused by their employees while driving and using their cellphones. There was also a growing effort by the federal and state governments advocating that no one should use a cellphone or other portable communication device while driving. Consider that the National Transportation Safety Board (NTSB) recommended in December of 2011 that all states and the District of Columbia ban any cellphone use behind the wheel, becoming the first federal agency to call for an outright prohibition on telephone conversations while driving. Notably, NTSB findings and other research has shown that drivers using even hands-free cellphones aren’t much safer than using hands-on cellphones because just talking on the phone reduces the brain power focused on driving by 37 percent.

Employers are urged, at this time of year especially, when company parties and events are common-place, to review corporate policies to ensure that it has minimized its risks from drunk, drugged, or distracted driving. As noted in a recent Law360 Analysis, “How To Hold A Holiday Party Without Inviting Legal Hassles,” “the potential legal exposure doesn’t have to shut down the party entirely.” The authors provide these steps, summarized here, to keep the party going while mitigating the risks:

  • Make and Enforce Clear Social Gathering Policies;
  • Temper Alcohol Consumption;
  • Remind Leaders to be Leaders;
  • Make Sure Employees Get Home Safely;
  • Keep the Party Universal; and
  • Make it Voluntary

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Environmental, Safety & Toxic Torts Group or the Workplace Counseling & Solutions Team.

 

By Kristina Launey

Seyfarth’s ADA Title III Specialty Team has reported extensively on the legal uncertainty surrounding the accessibility of businesses’ websites to individuals with disabilities.  Today it reports that businesses’ long wait for website accessibility regulatory guidance will continue, as the Department of Justice (DOJ) announced  last week that it will not issue any regulations for public accommodations websites until fiscal year 2018—eight years after it started the rulemaking process with an Advanced Notice of Proposed Rulemaking (ANPRM).

All the while, the DOJ and private plaintiffs continue to pressure businesses, through enforcement actions and lawsuits, to bring websites into conformance with a standard no law requires, citing the ADA’s general principle of “equal access”.  This puts businesses in an untenable position, as they struggle to prioritize what can often be considerable spend and business disruption to bring a website into conformance with this standard, against the multitude of other regulatory requirements with which the business must comply upon risk of violating established laws.  This external pressure has only increased of late—we have seen plaintiff’s lawyers initiate a virtual tsunami of demand letters and lawsuits against all manner of businesses (e.g., retailers, hotels, banks) alleging that their websites are not accessible to claimants with disabilities.  We have seen time and again businesses settle (most recently, as we had predicted, Scribd joined that club)—hence the dearth of case law in this area—quite simply (to the outside world; not so simple to the business’s interior decision-making) because it is less expensive to settle than to litigate in an uncertain legal landscape.  These enterprising litigants know this.

Why Should Employers (Who May or May Not Be Subject to Title III) Care? As an example, digital accessibility in employment has also made news lately: The Partnership on Employment and Accessible Technology (PEAT, funded by the Office of Disability Employment Policy in the U.S. Department of Labor) recently issued a report on its 2015 research findings, “eRecruiting & Accessibility: Is HR Technology Hurting Your Bottom Line?”, which sought to answer the question: What if top talent is falling through the cracks due to accessibility issues in eRecruiting, rather than a lack of qualifications?  PEAT researched the top HR technology companies offering these tools, and conducted one-on-one interviews with more than two dozen technology providers, employers, accessible technology consultants, disability advocates, and other experts in the business, disability, and accessibility fields.

From this, it identified the following as the top accessibility issues in this area:

  • (Lack of) Awareness – employers and technology providers tend to underestimate the need for accessible online job applications.
  • Compliance vs. usability mindset – the assumption that a website that complies with Section 508 of the Rehabilitation Act of 1973 (which requires that federal agencies make their electronic and information technology accessible to people with disabilities) meets the needs of all users, without regard to usability.
  • Technology, logistics, and cost – the belief that technical solutions for the most common accessibility issues already exist, but are expensive and difficult to implement.
  • Complexity – the failure of employers to consider accessibility challenges beyond the job application form itself, including processes related to job sourcing, pre-employment testing, and digital interviews; as well as how the application integrates with the overall corporate website (which may also have accessibility issues – see Title III discussion above).
  • Customization – built-in accessibility features are sometimes lost from off-the-shelf accessible products when vendors customize and install a tailor-made application.
  • Inadequate testing – technology providers and consultants suggested to PEAT that employers rarely tested their online job application software with actual users prior to launch.

After gathering this information from employers, IT providers, developers, and advocacy organizations, PEAT surveyed 427 people with varying disabilities (including vision, hearing, physical/motor, and cognitive/intellectual disabilities) about their experiences using eRecruiting tools. It found that 46% rated their last experience applying for a job online as “difficult to impossible.”  Of those, 9% were unable to complete the application and 24% required assistance from the employer.  Even after asking the employer for assistance, 58% were still unable to complete the application.  Of the 67% of survey respondents who were asked to complete pre-employment assessments or testing for a job opportunity, 22% were unable to complete testing and 19% required assistance. And, of the 50% of respondents who reported they used social media as part of their job search process; 40% experienced accessibility or usability issues, such as features they could not access at all or that were not user-friendly.

What’s the Problem? Top reported issues were:

  • Complex navigation
  • Timeout restrictions
  • Poor screen contrast
  • Confusing, poorly written, and inconsistent instructions
  • Fields that did not state an accepted format (such as date fields) and fields that were mislabeled or not labeled at all
  • Images that conveyed information, but did not have alternative text for individuals using screen readers
  • Applications and questionnaires that:
  • Relied on color, graphics, or text embedded with graphics to convey directions or important information
  • Could not be navigated with keystrokes and required mouse input
  • Had to be signed using a mouse
  • Videos or audio instructions that were not closed captioned
  • Inaccessible “CAPTCHAs“ (used to determine whether or not the user is human) with no audio option
  • Trouble uploading the necessary documents
  • No notice about use of pop-up windows, which are blocked by most browsers in many settings, such as libraries and employment centers
  • Lack of contact information for technical support
  • Lack of information on how to request an accommodation

Even if the risk of a consumer or employee lawsuit – or class action – were not enough motivation to develop an enterprise-wide digital accessibility plan, the report notes that these issues affect all applicants for employment, not just people with disabilities: “Think of closed captioning, curb cuts, and voice recognition — technologies initially created for people with disabilities and now used by everyone.”

To learn more about digital accessibility, the surge of ADA Title III litigation activity, and what your business can do to mitigate risk, visit our Team’s blog, www.adatitleiii.com, and join our Title III Team for a webinar on December 2, 2015:  Is Your Business the Subject of a Title III Lawsuit Yet?”.

By Kevin A. Fritz

Photo-Bush-300x199Signed into law today, 25 years ago, on July 26, 1990, the Americans with Disabilities Act is the most comprehensive civil rights law designed to prohibit discrimination against people with disabilities.

Each year since its passage, more people with disabilities are entering the workforce, earning income, and spending and consuming goods. Good access makes good business sense. By reaching customers with disabilities, businesses obtain more customers and improve their image.

In the spirit of anniversary of this legislation, here are 25 easy ways to make your business more accessible to customers with disabilities:

  1. If the main entrance of your business is not wheelchair accessible but there is an alternate accessible entrance, post clear signage by the main entrance giving directions. Also add the International Symbol of Accessibility at the accessible entrance and include key accessibility information about access, parking, or other services on your website (g., the rooftop bar is only accessible via stairs).
  2. Keep your lowered accessible counter clear at all times. Do not store or display items on this counter.
  3. Where there are corners, steps, and edges, mark these with high visibility contrasting colored material so that they can be easily seen.
  4. If your business provides table or bar seating, make sure you have accessible seating for wheelchair users. A table that provides space underneath the top that is 30” wide, 17” deep, and 27” high, with a top that is between 28” and 34” from the ground is accessible.
  5. Keep walkways and accessible parking access aisles clear and free from clutter or snow, and make sure your premises are well lit. Keep any bushes, trees, or flower arrangements near your business clipped so there are no low hanging hazards for persons who are blind or have low vision, or overgrown bushes obstructing the path of travel for those using wheelchairs or other mobility aides.
  6. Signage for permanent rooms, such as restrooms, must have braille and raised lettering. The background and foreground must contrast.
  7. Doors that are heavy and hard to open can be very difficult to use for the elderly or people who use wheelchairs or mobility aids. Adjust closers so that the doors require less force to open.
  8. In bathrooms, make sure wastebaskets or other moveable objects do not obstruct clear spaces next to the doors. Similarly, in accessible wheelchair stalls, keep the area around the toilet and under the sink clear. Doing so ensures that persons using wheelchairs can safely operate the door and navigate.
  9. If your place of business is not accessible for wheelchair users because there are steps at the entrance, consider how you can provide the goods and services to such customers in an alternative fashion (g., personal shopper, home delivery, or home visit service).
  10. Welcome service animals into your establishment. If you don’t know if it’s a service animal, you can ask two questions: (1) Do you need this animal because of a disability? (2) What work or tasks has this animal been trained to perform?
  11. When choosing signage, language matters. Instead of signs that use the word “handicapped” –which is considered offensive by many people with disabilities – opt for signs that use the word “accessible.”
  12. Consider how persons with disabilities will be evacuated from your facility in an emergency, and include that procedure in your emergency evacuation plan. Make sure your employees know the procedure.
  13. Use people first language when referring to someone with a disability. Refer to a person as an individual with a disability rather than a “disabled person,” or a “handicapped person.” In that vein, refer to a person as one who uses a wheelchair (rather than one “confined” to one) or one who is blind (rather than one who “suffers” from blindness).
  14. When speaking with a person with a disability who has a companion, direct your comments to the person with a disability to that person, not the companion – unless specifically instructed otherwise by the person with a disability.
  15. With all written information, structure content in a logical order using plain English and avoiding long sentences.
  16. People who are deaf make phone calls using a telecommunications relay service (TRS). Accept calls made through such services and treat them the same as other calls.
  17. Be prepared to read menus to customers who are blind or have low vision. Posting menus online provides such customers another way of reviewing the menu (using assistive technology such as screen readers) before they visit the restaurant.
  18. Make sure your employees are prepared to interact with customers who are blind or deaf. They should be ready to read written documents to customers who are blind or have low vision and to exchange notes with customers who are deaf, hard of hearing, or have difficulty speaking. Have a pad of paper handy for this purpose.
  19. People with hearing, speech, or sight disabilities may require extra time or a quiet area to talk with staff. Be patient with the extra attention that might be necessary to understand what is being said and how to assist.
  20. Make sure that your accessible register or checkout lane is always open when the store is open.
  21. Always ask first if a person with a disability needs assistance, never assume.
  22. If a customer who is blind needs to be led to a location in your business, offer the person your arm. Wait for them to accept the assistance.
  23. If a person with a disability requests that you modify a policy or provide additional assistance, consider the request meaningfully. There may be a legal requirement to do it. For example, if your business requires a driver’s license to rent an item, consider accepting another form of state-issued identification for an individual who is blind or physically unable to drive a vehicle.
  24. If you have a pool lift, make sure it is out and ready to be used (e., battery charged and lift uncovered) at all times when the pool is open.
  25. Customer feedback is a great opportunity to learn about your customers and their thoughts on how accessible your business actually is. Be open to receiving feedback and act on it. You may be preventing a lawsuit in the process.

Businesses can make it easier for people with disabilities – as well as other customers – to access and purchase the services or products they have to offer. In short, accessibility pays dividends and makes good business sense.

Kevin Fritz is an associate in the Chicago office of Seyfarth Shaw LLP where he focuses his practice on complex discrimination litigation, workplace counseling and solutions, and access defense.

By Brian A. Wadsworth

Employers are well aware that the protections provided by 42 U.S.C. § 1981 extend to both United States citizens and permanent residents, colloquially referred to as “green card holders.”

Some employers, however, may be unaware that lawfully present aliens who are not green card holders may also be protected by § 1981. In Ruben Juarez v. the Northwestern Mutual Life Ins. Co., Inc., Civ. No. 14-cv-5107, Judge Katherine Forrest of the Southern District of New York recently held that a lawfully resident alien had a cognizable cause of action against a potential employer for its “US citizen and green card holder only” employment policy.

Plaintiff Ruben Juarez (“Juarez”), an alien legally authorized to work in the US, applied for a position with Defendant Northwestern Mutual Life Ins. Co. Inc. (“Northwestern Mutual”). During his interview, Juarez explained his status and noted that “he could legally work for Northwestern Mutual regardless of whether he was a citizen or had a visa.” Northwestern Mutual disagreed and informed Juarez after the interview that in order to be hired by Northwestern Mutual, a candidate had “to be a US citizen or have a green card.” Six months after his interview, Juarez filed a putative class action against Northwestern Mutual, alleging alienage discrimination in violation of § 1981.

Northwestern Mutual promptly filed a motion to dismiss for failure to state a claim. On November 14, 2014, Judge Forrest denied this motion. Northwestern Mutual argued that Juarez was denied employment because he did not possess a green card, not due to his citizenship. Thus, it could not have discriminated against him on the basis of alienage.

In rejecting this argument, Judge Forrest reasoned that the protection afforded by § 1981 extends to “all lawfully present aliens.” This conclusion was based on the statutory language. Namely, “[a]ll persons within the jurisdiction of the United States shall have the same right . . . .” Judge Forest also relied on “a long line of precedent interpreting the Equal Protection Clause.” This bevy of case law, as noted by Judge Forrest disallows discrimination on the basis of alienage.

Displeased with the finding, Northwestern Mutual sought to certify the Judge Forrest’s opinion for interlocutory appeal. On December 30, 2014, the Court granted Northwestern Mutual’s motion to certify the Court’s Opinion & Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) because the opinion “addresses a pure legal question of first impression and significant practical importance: whether a policy that expressly denies employment to lawfully present aliens without green cards runs afoul of § 1981.” On March 17, 2015, the Second Circuit determined that it would review the District Court’s interlocutory order.

The implications of Juarez, depending on its outcome, could be significant for employers. It is likely that many employers are not cognizant that a “US citizen or green card holder only” policy may be in violation of § 1981. If the Second Circuit uphold this decision, it could require employers to reanalyze their employment policies to ensure they are complying with the Juarez holding.

This decision may also place a burden on employers to remain current on immigration and work permit laws. To avoid improper hiring practices, an employer will need a thorough understanding of whether lawfully present aliens are indeed legally authorized to work in the US. It may also require employers to bolster their applicant review process.

Should the Second Circuit uphold Juarez, employers should review their employment application and hiring processes and policies. Employers should also be cognizant that providing employment exclusively to US citizens and green card holders may generate liability under § 1982.

If you have questions regarding this topic, please contact the author, or your Seyfarth attorney.

 

By: Paul H. Kehoe and Lawrence Lorber

EEOC-logo2-150x150Earlier today, the EEOC published its much anticipated Notice of Proposed Rulemaking (“NPRM”) regarding the interaction between wellness plans and the Americans with Disabilities Act (“ADA”). As we have discussed here and here, the issue of whether an incentive or surcharge permitted (indeed, encouraged) under the Patient Protection and Affordable Care Act (“ACA”) is nonetheless impermissible under the ADA and GINA has caused consternation for the regulated community. The EEOC’s proposed rule provides some clarity on that issue, but raises or ignores additional concerns for employers offering wellness plan incentives to employees. The comment period will close on June 19, 2015.

The 30% Rule

Under the Affordable Care Act (“ACA”) and its implementing regulations issued by the Departments of Labor, Treasury and Health and Human Services, employers may offer financial incentives to employees up to 30% of their health care premiums for participating in and reaching certain health outcomes in a wellness plan and up to 50% for smoking cessation programs. The EEOC however, has added a nuance to the nicotine prevention component of the ACA and HIPAA. Under the NPRM, if an employer conducts a biometric exam to test for nicotine, any incentive would be capped at 30% instead of 50%. If no disability-related inquiry is made, a 50% incentive is permissible.

In addition, the NPRM does not specifically adopt the “HIPAA / ACA standard” but instead imposes hard percentage caps. If the percentages rise or fall in the future at the behest of those Secretaries, the EEOC’s adoption of hard numbers would then again leave the EEOC inconsistent with the Cabinet-level agencies.

The ADA Safe Harbor

Section 501(c) of the ADA provides that it cannot be construed to prohibit or restrict “a person or organization covered by this chapter from establishing, sponsoring, observing or administering the terms of a bona fide benefit plan that are based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State law.” In its discussion of Seff v. Broward Cty., 691 F.3d 1221 (11th Cir. 2012), the NPRM seems to definitively reject the notion that any wellness plan can be part of a bona fide benefit plan. In other words, the EEOC rejects the premise that a wellness plan can be structured to fall within the safe harbor established by the ADA. The fact is, some wellness plans fall within the safe harbor, and some do not.   While the EEOC may disagree with the 11th Circuit’s decision in Seff, it seems to have gone beyond its disagreement with the Seff decision and has unilaterally written the safe harbor out of the statute. The EEOC lacks that authority.

A Question About Affordability

Under the ACA, employers are not required to provide health insurance. Instead, an employer can choose to pay a fine. Even where an employer offers health insurance, it only must offer a single plan that is affordable, and even then, employees can choose whether to enroll in that plan or a more robust plan that may not meet affordability standards.

However, in the NPRM, the EEOC specifically requested comments on the following:

Whether to be considered “voluntary” under the ADA, the incentives provided in a wellness program that asks employees to respond to disability-related inquiries and/or undergo medical examinations may not be so large as to render health insurance coverage unaffordable under the Affordable Care Act and therefore in effect coercive for an employee…

Where such incentives would render a plan unaffordable for an individual, it would be deemed coercive and involuntary to require that individual to answer disability-related inquiries[.]

If an employer would have to test affordability under some as yet to be determined test for each of its plans for each employee, then the same wellness plan incentives could conceivably be voluntary for some employees, and non-voluntary for other employees. Such an outcome was not contemplated by the ACA or the implementing regulations, and would likely chill employers from offering any wellness plan incentives — exactly the opposite of Congressional intent and contrary to White House statements. Nor does the EEOC provide statutory support for its question regarding affordability so that the basis of this discussion in the rulemaking process would seem to be unanchored to any statutory provision.

Spousal Incentives

The regulated community has, for years, raised concerns about EEOC investigations into incentives offered to employee spouses for completing health risk assessments where information related to manifested conditions is inquired about. Indeed, this was part of the Honeywell litigation late last year. Unfortunately, the EEOC failed to address the issue and continues to leave the regulated community and its career staff without guidance.

Implications For Employers

While the rule, if promulgated, would provide some clarity for employers, it would also raise some important questions related to the EEOC’s power to strip employers of a statutory defense, and potentially muddy the waters if an affordability standard is included. In addition, the NPRM opens the door to uncertainty with reference to wellness program-related claims under Title VII and the ADEA as well. Given these potential issues and more that will inevitably arise in the coming weeks, it is important for the regulated community — employers, wellness program providers, and others — to consider submitting comments for the record regarding the pros and cons of the proposed rule. As we have throughout this entire process, we will keep you posted on any developments.

As you may remember, our colleague Paul Kehoe has written recently about wellness plans on the Employment Law Lookout, here and here.

Today, Paul testified before Congress on this very topic. The hearing was scheduled to begin at 10:00 a.m. ET. More details on the hearing can be found here. Paul’s written testimony is available here.

We will keep you updated as to further developments on this topic, so be on the “Lookout” (the Employment Law kind!) soon both for analysis on the topic and any for subsequent updates on the law.

By: Paul H. Kehoe

On March 2, 2015, U.S. Senate Committee on Health, Education, Labor & Pensions Chairman Lamar Alexander (R-Tenn.) and U.S. House of Representatives Education and the Workforce Committee Chairman John Kline (R-Minn.) introduced companion bills entitled “Preserving Employee Wellness Programs Act.” The legislation, found here, was cosponsored Sens. Mike Enzi (R-Wyo.), Johnny Isakson (R-Ga.), Tim Scott (R-S.C.), Orrin Hatch (R-Utah), Pat Roberts (R-Kan.), and Rep. Tim Walberg (R-Mich.). These bills come on the heels of the Senate HELP Committee’s January 29, 2015 hearing on wellness programs and related EEOC enforcement. The legislation addresses several potential problems for both employers and employees under the Americans with Disabilities Act (“ADA”), as amended, and the Genetic Information Nondiscrimination Act (“GINA”).

First, the legislation would resolve the issue of whether an incentive or surcharge permitted (indeed, encouraged) under the Patient Protection and Affordable Care Act (“ACA”) is nonetheless impermissible under the ADA and GINA. Under the ACA and its implementing regulations issued by the Departments of Labor, Treasury and Health and Human Services, employers may offer financial incentives to employees up to 30% of their health care premiums for participating in and reaching certain health outcomes in a wellness plan (and up to 50% for smoking cessation programs). Under the ADA, medical examinations (including biometric screening) are not permitted unless such inquiries are either job related and consistent with business necessity or voluntary.

As you may recall, the EEOC recently sued Honeywell International seeking a preliminary injunction to stop it from implementing its wellness plan, which required employees to undergo biometric testing to obtain financial incentives. The EEOC’s theory was that Honeywell’s incentives offered through its wellness program made participation non-voluntary under the ADA and GINA even if the incentives complied with the ACA and its implementing regulations. The legislation would essentially deem compliance with the ACA to be compliance with the ADA, and foreclose any argument that a compliant incentive or surcharge under the ACA could violate the ADA or GINA.

Second, the legislation provides that collecting information about a manifested disease or disorder of a family member would not be an unlawful acquisition of genetic information of the employee under GINA. The regulated community has, for years, raised concerns about EEOC investigations into incentives offered to employee spouses for completing health risk assessments where information related to manifested conditions is inquired about. The legislation would address that concern.

Finally, if enacted, the legislation would supersede any regulations promulgated by the EEOC on these issues in the coming months. It would eliminate confusion caused by the EEOC and allow employers to design compliant wellness programs to the extent authorized by Congress under the ACA. We will keep you updated on developments regarding wellness plans and the forthcoming EEOC proposed regulations which are expected in the near future.

By: Minh Vu, Kristina Launey and Susan Ryan

Employers need to be mindful that places of public accommodation (i.e., a business open to the public) are subject to Title III of the ADA, which brings a whole host of new issues and concerns to keep our readers awake at night.  Our colleagues who blog about Title III developments are recognized subject matters experts on these topics and can assist should you have questions about Title III issues that might pertain to you.  Please review their attached blog from earlier this month and watch that blog for ongoing developments in this increasingly visible area of the law.

If you had a suspicion that the Title III plaintiffs have been far more active in recent years, you were right.  Our review of the federal docket shows that there was a 9% increase in the number of lawsuits filed from 2012 to 2013. What’s more, the number of lawsuits filed in 2014 may increase by nearly 40% over 2013 if the current trend continues.

Nationwide, plaintiffs filed 2,719 ADA Title III lawsuits last year, as compared to 2,495 in 2012.  That’s an increase of slightly more than 9% year-over-year.

Where were the most complaints filed in 2013?  California (995 claims), Florida (816 claims) and New York (125 claims).  The high percentage of cases filed in California is no surprise because California has a non-discrimination law that provides for statutory minimum damages of $4,000.  Plaintiffs filing in California almost always include claims under California law because their remedies under the Title III of the ADA are limited to injunctive relief and attorneys’ fees.  (If you’re in Pennsylvania, beware: June 2014 saw a slew of physical accessibility class complaints filed by the same plaintiff, Christopher Mielo, and law firm, Carlson Lynch, against numerous businesses.)

Want to avoid ADA Title III lawsuits?  Open your business in Alaska, Idaho, Montana, Nebraska, North Dakota and Vermont where no ADA Title III cases were filed in 2013.

Our research also shows that ADA Title III case filings may reach more than 3800 cases in 2014 — a whopping increase of 40%.  Already, we saw approximately 1939 ADA Title III cases filed in the first six months of the year.  We say “approximately” because the federal docket system, PACER, lumps Title II and Title III cases together under the category of “Americans with Disabilities — Other.”  We obtained the 1939 number by assuming that 86% of the ADA Title II and Title III cases reported were actually ADA Title III cases.  The 86% is based on our research department’s manual review of the 2012 and 2013 case filings to separate out the Title II and Title III cases.  That review showed that 85-87% of the total cases reported by PACER in 2012 and 2013 were Title III cases.

If you want to drill down on our methodology, here goes:  We ran a PACER search in federal district courts for nature of suit code 446, which covers non-employment ADA cases.  We then went through the resulting list of case names, eliminating those that were clearly filed against public entities that would fall under Title II.  What we had left were the Title III complaints for 2012 and 2013.  We did not undertake a manual review of the 2014 numbers but, as explained above, applied the findings from the 2012-2013 review to the 2014 numbers.

We do want to give a few of caveats about these numbers.  First of all, not all plaintiffs code their claims correctly.   For example, some of the cases we checked to determine if they were Title II or Title III claims turned out to be Title I claims that were given the wrong nature of suit code.  Secondly, there are some plaintiffs whose complaints are, to put it mildly, opaque in their intent.  We decided not to count these as Title III claims, but someone else might have reached a different conclusion.

While our approach may not be bullet proof, we can safely say that the number of ADA Title III lawsuits are on the rise, propelled by cases concerning the accessibility of new technologies and the internet.