Offering Practical Guidance to Employers
The Massachusetts Department of Family and Medical Leave’s (DFML) proposed amendments to existing regulations for the Massachusetts Paid Family and Medical Leave Act (PFMLA) include significant changes relating to the private or self-funded plan exemption. Employers offering approved private plans may be exempt from making PFMLA contributions. The start date for benefit availability under the PFMLA is January 1, 2021.
For more information, our full article is linked here.
The Puerto Rico Senate has approved unanimously Senate Bill No. 1577 (SB 1577), which seeks to amend Section 9 of Puerto Rico Act No. 44 of July 2, 1985, known as the “Law Prohibiting Discrimination Against Disabled Persons,” to expand its protection and confer certain types of employees the right to a reasonable accommodation in the workplace during the COVID-19 pandemic. The House of Representatives is considering the bill.
SB 1577 would give employees the right to request a reasonable accommodation if the employee has a disease or health condition identified by the Centers for Disease Control and Prevention (CDC) or the Department of Health as one that increases the individual’s risk of becoming seriously ill or dying if they contract COVID-19.
For more information please see our full report.
On April 19, 2020, Judge James V. Selna of the United States District Court, Central District of California, granted a motion to declare pro se plaintiff Peter Strojnik, Sr. a vexatious litigant, requiring him to obtain the permission of the Court before filing any future accessibility lawsuits with the District Court. Federal courts by statute have the discretion to enjoin vexatious litigants. See All Writs Act, 28 U.S.C. §1651(a). Defense attorneys and hotel owners and operators, especially in California, are very familiar with Mr. Strojnik as he has filed hundreds of nearly identical lawsuits and claims against hotels in the last few years as a pro se plaintiff after his license to practice law was suspended for unethical conduct.
On August 13, 2019, Strojnik filed a complaint in the U.S. District Court for the Central District of California in Strojnik v. SCG America Construction Inc., U.S.D.C., C.D. Cal., Case No. 8:19-cv-01560-JVS-JDE. Strojnik alleged violations against the hotel under the ADA and the California Unruh Civil Rights Act, §§51, 52, the California Disabled Persons Act, Cal. Civ. Code §§ 54-54.3, and negligence. The complaint was unremarkable in its allegations from the nearly 150 lawsuits Strojnik has filed in the last few years. The complaint followed the same pattern – Strojnik alleges that he is disabled and regularly travels to and in California. He alleges that he is deterred from visiting the hotel because it is not accessible under federal and state law based on his own visit to the hotel and/or because the hotel’s website lacks a sufficient description of accessible features. What made this case remarkable was that the defendant did not settle, but rather filed a motion to dismiss the case and to declare Strojnik a vexatious litigant throughout the federal courts in California.
Judge Selna granted the hotel’s motion to dismiss without prejudice, agreeing that Strojnik had not established standing because the operative complaint contained barebones allegations including attaching blurry pictures of alleged violations that did not adequately identify how any actual barriers to access related to any particular disability. The Court also held that it did not have jurisdiction over the state law claims. The Court went one step further and declared Strojnik a vexatious litigant although the Court limited the ruling to the Central District of California. The Court noted that declaring a litigant vexatious is an extraordinary remedy that should rarely be used. Nonetheless, the Court found that Strojnik is a vexatious litigant based mostly on his well-documented history of filing many frivolous lawsuits, creating an unnecessary burden on litigants and the courts and repeatedly ignoring court orders. See Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007) (providing factors courts weigh to declare a plaintiff a vexatious litigant).
The Court further noted that although Strojnik is a pro se litigant, he is a former attorney, and should have been aware of appropriate conduct. As a result of being declared a vexatious litigant in the Central District of California, Strojnik will need to obtain permission from the Court before filing another ADA case in that district. Strojnik is challenging the ruling, and on April 22, 2020, Strojnik filed a request for the Court to supplement its order to provide further details as to why he was declared a vexatious litigant. On May 5, 2020, the Court denied Strojnik’s request for the Court to supplement its order declaring Strojnik a vexatious litigant.
This decision should help hotel owners and operators in particular by dampening and deterring future accessibility lawsuits Strojnik may have filed in this District Court. Our guess is that Strojnik will claim a loophole in the decision to permit him to file accessibility lawsuits unabated by the Court’s requirement to seek the Court’s permission before filing future accessibility lawsuit in this District Court.
Please contact Jackson Lewis with your questions about accessibility compliance and litigation.
Despite significant legal obstacles, on May 4, 2020, a group of plaintiffs filed a class action complaint alleging the Queens Adult Care Center (QACC) violated Title III of the Americans with Disabilities Act (Title III) and its precursor, Section 504 of Rehabilitation Act (Section 504), by failing to provide a level of care to safeguard their health and safety at its assisted living facility during the COVID-19 pandemic.
The plaintiffs seek to certify a class under Federal Rules of Civil Procedure Rule 23(b)(2) or (b)(3) of all current or future residents of QACC during the course of the COVID-19 pandemic who have disabilities that require assistance with activities of daily living.
The proposed class action lawsuit, Schoengood, et al. v. Hofgur LLC d/b/a Queens Adult Care Center and Gefen Senior Group, No. 1:20-cv-02022 (E.D. N.Y.), is the first of its kind seeking to hold a place of public accommodation liable under Title III or Section 504 for not taking adequate measures, in the plaintiffs’ estimation, to prevent or mitigate the spread of COVID-19.
This case has potentially far-reaching implications for all places of public accommodation. To read our full article, please click here.
New York State has joined the growing list of states and localities (including New York City and Westchester County) mandating that employers provide paid sick leave to employees.
The new obligation is separate and distinct from the New York State Quarantine Leave Law enacted in response to COVID-19.
The statewide sick leave law applies to all employers with employees in the state. The law goes into effect on September 30, 2020 when employers must allow employees to start accruing paid sick leave, but employers are not obligated to allow use of sick leave until January 1, 2021.
Similar to the New York Quarantine Leave Law, the amount of paid sick leave an employer must provide an employee varies based on an employer’s size. Employers with 100 or more employees must provide 56 hours of paid sick leave per calendar year. Employers with fewer than 100 employees must provide 40 hours of paid sick leave; except employers with less than 5 employees, and a net income of less than $1 million, can provide 40 hours of unpaid time. The law does not specifically address whether multistate employers should count employees outside of New York in determining an employer’s size.
For more details on the new New York Paid Sick Leave law see https://www.jacksonlewis.com/publication/new-york-budget-includes-changes-state-employment-laws
Before the COVID-19 crisis, there were limited paid leave entitlements in California for employees requiring time off to deal with childcare and school closures. California Labor Code 230.8 required that employers of 25 or more employees working at the same location were required to provide employees with up to 40 hours of unpaid leave within a calendar year to handle child-related activities, including to address a childcare provider or school emergency. As schools and childcare facilities began closing due to COVID-19, the California Labor Commissioner released a Frequently Asked Question page clarifying that employees may apply their California Paid Sick Leave to a covered leave under California Labor Code section 230.8. Also, pre-COVID-19, the City of San Diego was unique in California in that it included care for a child whose school or childcare provider is closed due to a public health emergency as a covered reason for its local sick leave. However, in mid-March, the landscape of leave entitlements available to employees for COVID-19 related school and childcare closures began to radically expand. Several cities in California responded to the COVID-19 pandemic with an expansion of their local paid sick leave ordinances to cover leave necessitated by the closure of a school or childcare due to a COVID-19 public health emergency.
Furthermore, the federal government passed the Families First Coronavirus Response Act (FFCRA), which provided paid leave for employees who needed to care for a child while their school or childcare provider was closed due to COVID related reasons. FFCRA was limited to employers with under 500 employees, and smaller employers of 50 or less were also potentially exempted.
Since mid-March, the Cities of Los Angeles, San Francisco, and San Jose, as well as the County of Los Angeles, have also passed local supplemental paid sick leave ordinances that require paid leaves for employees caring for children whose schools or childcare are not available due to COVID-19. These ordinances only covered larger employers exempted from the FFCRA requirements.
As the closures continue and many childcare facilities announce they will remain closed through the summer months, employees will likely exhaust their various paid leave allotments, whether through existing policies or new requirements. To aid with this upcoming issue, the California legislature is considering an amendment to the state’s Paid Family Leave program to allow employees to obtain income replacement under the unemployment insurance code for COVID caused school closures. Senate Bill 943 would authorize wage replacement benefits for employees who take time off to care for a minor child whose school is closed or to care for a special needs child or adult due to the COVID outbreak.
The present version of Senate Bill 943 limits the entitlement’s application to employers with 500 or more employees or fewer than 50 employees. If passed, this amendment will sunset on June 1, 2021. The amendment contains an urgency clause, which means if signed by the governor, it will go into effect immediately to provide immediate support to employees.
Jackson Lewis will continue to track this legislation and other emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.
On Friday, April 23, 2020, Judge Gregory Woods of the Southern District of New York issued a first of its kind decision rejecting the argument that ADA Title III requires business that offer gift cards to also offer them in Braille. Dominguez v. Banana Republic, LLC, 1:19-cv-10171-GHW (S.D.N.Y. April 23, 2020). The decision is the first in almost 250 nearly identical cases filed in the Southern and Eastern Districts of New York since the fourth quarter of 2019, and may be persuasive authority for other judges faced with similar claims. In the past few days, Judge Woods dismissed half a dozen Braille gift card cases based on the same legal theory, explaining that there are “virtually no difference[s]” between the cases, dismissing the claims “for all of the reasons identified in Banana Republic.”
The plaintiff’s barebones complaint was founded on allegations that he called Banana Republic’s customer service and asked whether it sold gift cards containing Braille. He was told it did not, and his lawsuit soon followed.
First, Judge Woods dismissed the complaint for lack of standing. In order for a plaintiff to have standing to sue under Title III of the ADA, he or she must at least allege a likelihood of using the goods and service of the business in the reasonably near future. The Court reasoned that the plaintiff’s “all-too-generic” complaint had failed to establish an injury-in-fact because he did not demonstrate that he intended to return to Banana Republic, so he was not likely to suffer an injury in the future if Banana Republic did not offer Braille gift cards.
Second, Judge Woods rejected the argument that gift cards are goods that Title III requires to be accessible. Judge Woods observed that the ADA mandates “access to places of public accommodation—not the type of merchandise a place of public accommodation sells,” explaining by way of example that, “a bookstore could not prohibit a visually impaired person from entering its store, but it need not ensure that the books it sells are available in both Braille and standard print.”
Third, Judge Woods rejected the plaintiff’s analogy between gift cards and websites which must be made accessible to individuals with disabilities. He determined that gift cards, unlike websites where goods and services can be purchased, are not “places of public accommodation” because they are not places where goods can be purchased. Accordingly, the Court determined that including gift cards, which are “small slabs of plastic,” within the definition of places of public accommodation, “would require a rewrite of Title III entirely” and not merely an interpretation of the statute as plaintiff contended.
Finally, because the plaintiff had never requested an “auxiliary aid,” the Court rejected his claim he had been denied access to Banana Republic’s goods and services. Under the ADA, places of public accommodation must assist individuals with disabilities by offering auxiliary aids when necessary to provide access to the business’s goods and services, but the individual must first make the request. The Court reiterated that the type of effective auxiliary aid is the business’s decision. So, for example and by way of analogy, “a restaurant would not be required to provide menus in Braille . . . if the waiters in the restaurant are made available to read the menu.” The facts alleged in the plaintiff’s complaint about his call to Banana Republic did not establish that he requested any auxiliary aid.
Judge Woods also rejected the plaintiff’s arguments that gift cards are like ATM cards or cash, which implicate privacy concerns and are subject to specific regulations.
In dismissing the plaintiff’s complaint, the Court concluded that “[c]omputers have made a lot of things in life easier. Copy-and-paste litigation is one of them. The pitfalls of such an approach is evident here where, among other things, Plaintiff’s opposition responds to arguments never made by its opponent in its motion and failed to even correctly identify what Defendant sells. See, e.g., Opp‘n at 3, 15, 16, 20 (referring to Banana Republic as a “food establishment”). Although it features the fruit in its name, Banana Republic does not sell bananas.”
Banana Republic is a good, well-reasoned decision supported by long-standing regulations promulgated by the U.S. Department of Justice and related agency guidance. Accordingly, the decision is likely to serve as persuasive authority for other judges in deciding other motions to dismiss in nearly identical gift card cases.
In the past few weeks, the EEOC has updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws on multiple occasions. The EEOC’s most recent update to this informal guidance provides an answer to the following question: “May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?”
In answering this question, the EEOC applies the ADA standard which requires medical testing of employees be “job related and consistent with business necessity.” Applying this standard to the current COVID-19 pandemic, the EEOC states employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. But, the EEOC notes that employers should ensure that the tests are “accurate and reliable.” The EEOC’s ADA regulations also require direct threat determinations be based “on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” To satisfy these standards, employers should consider FDA and CDC guidance concerning standards for safe and accurate testing, including evaluating the incidence of false positives or negatives with the test.
What does this mean for employers? Like its earlier statements allowing employers to conduct temperature checks on employees, this latest addition provides employers with additional support for conducting or requiring employees to be tested for COVID-19 before returning to the workplace.
Of course, as the EEOC points out, COVID-19 testing only determines if the employee is currently ill, and, unless the employer intends to test every day, its effectiveness in preventing employees from reporting to work with the virus is limited. Nevertheless, requiring a negative COVID-19 test before employees return to work following COVID-19 infections or quarantines may provide employers additional comfort and protection.
Daily COVID-19 testing likely is not practical because of cost and limited availability, at least currently. Temperature checking, while not necessarily determinative of whether an employee has the virus, is an option in many jurisdictions, especially if paired with questionnaires concerning potential COVID-19 symptoms or activities (e.g., attendance at mass gatherings) that increase the risk of COVID-19 exposures. Pulse oximeter testing and antibody or serology testing are rising in popularity (at least in the media). Currently, neither has been approved expressly by the EEOC. If the CDC or FDA approves these to combat COVID-19, this may change. According to the FDA’s FAQs on Diagnostic Testing For SARS-CoV-2, the “FDA is not aware of an antibody test that has been validated for diagnosis of COVID-19 infection.”
Of course, the EEOC’s opinion only addresses concerns under the ADA. Employers also need to consider state and local laws, including privacy concerns.
Jackson Lewis attorneys and the dedicated COVID-19 Task Force are tracking the rapidly evolving federal, state, and local mandates. Please contact a Jackson Lewis attorney with any questions.
As the Centers for Disease Control and Prevention (CDC) continues to study COVID-19, the agency is regularly updating guidance on precautionary measures to further prevent the spread of COVID-19 across the United States. The agency has expanded its recommended precautions to include “wearing cloth face coverings in public settings where social distancing measures are difficult to maintain” in response to new information showing that COVID-19 can spread from asymptomatic people in close proximity interactions (e.g., individuals standing directly next to each other and talking). To read full article please click here.
Soon after San Jose passed its supplemental paid sick leave ordinance to respond to the COVID-19 crisis, it issued further guidance regarding the leave. The Director of the Office of Equality Assurance, the office charged with enforcement of the emergency ordinance, has also issued an opinion letter to provide additional information. The opinion letter addresses the question of whether an employer that already provides the amount of sick leave hours required by the ordinance, must also provide additional leave for an employee who has exhausted some or all of that leave on the ordinance effective date. Read more.
