On June 2, 2022, the Second Circuit issued a decision in Calcano, et al. v. Swarovski North America Ltd., et al., affirming dismissal of five consolidated cases brought by visually impaired plaintiffs who alleged various retail defendants must provide braille gift cards under the Americans with Disabilities Act (ADA).  The five lawsuits consolidated on appeal were filed between 2019 and 2020, when the Southern and Eastern Districts of New York were flooded with hundreds of similar complaints.  Many of these complaints (including the five consolidated appeals) were dismissed by the district courts based on the plaintiffs’ lack of standing and/or their failure to state a claim under the ADA.  Those that remained unresolved at the time of the consolidated appeals were stayed pending the outcome at the Second Circuit Court of Appeals.  The Calcano decision therefore has been highly anticipated by plaintiffs and defendants alike.

The Second Circuit’s majority opinion affirmed dismissal based on lack of standing only and did not reach the issue of whether the plaintiffs adequately plead that defendants failed to accommodate them under the ADA because defendants did not provide braille gift cards.  In a concurring opinion, however, Judge Lohier, opined that dismissal on the merits was appropriate.

In reaching its decision, the majority noted each plaintiff’s identical assertions that he resides “in close proximity to” defendants’ businesses; has been a “customer at Defendant’s [location] on prior occasions” and “intends to immediately purchase at least one gift card from the Defendant as soon as the Defendant sells store gift cards that are accessible to the blind” were insufficient to establish standing.  The majority found the plaintiffs did not allege they suffered an injury in fact because their “conclusory allegations of intent to return and proximity” were too vague to establish that they faced “a material risk of future harm” that is “sufficiently imminent and substantial.”  The majority also identified the plaintiffs’ assertions as parroted from language in a prior ADA Title III decision that addressed standing, and therefore found their assertions to be nothing more than “legal conclusion[s] … couched as factual allegation[s].”

The concurring opinion by Judge Lohier assessed plaintiffs’ standing less stringently and with less of a focus on plaintiffs’ “intent to return” to the defendants’ businesses.  The concurrence found all but one plaintiff established standing and went on to address the merits of the claims.  The concurring opinion did not dispute plaintiffs’ claim that gift cards must be accessible.  Indeed, the concurrence concluded a gift card is a “good” and “means of access to goods and services” under Title III of the ADA and that places of public accommodation therefore must provide “adequate auxiliary aids and services to ensure that blind customers can make meaningful use of gift cards.”  The concurrence did, however, dispute plaintiffs’ claim that defendants failed to provide an adequate auxiliary aid because they failed to provide braille gift cards.  The concurrence found plaintiffs’ conclusory allegation that “[the defendants] do not offer auxiliary aids with respect to gift cards” failed to state cause of action.  In support of this conclusion, the concurrence noted plaintiffs failed to plausibly allege (1) why other types of auxiliary aids – such as a store clerk’s assistance – would not permit them to enjoy the benefits of the gift cards; and (2) that defendants did not offer other aids that might enable them to use gift cards.

Calcano is a welcome decision for businesses who have seen an unrelenting onslaught of public accommodation lawsuits. The decision is an example of the opportunities businesses have to successfully defend these public accommodation lawsuits and the potential to eliminate or significantly reduce the number of lawsuits by serial plaintiffs.  Calcano demonstrates the vulnerability plaintiffs encounter to establish a real and imminent threat of harm to have standing to sue under the ADA where the plaintiffs file hundreds of complaints with nearly identical boilerplate allegations. While the Second Circuit affirmed the district court’s dismissal of these lawsuits on the more limited basis that plaintiffs lacked standing, the concurring opinion by Judge Lohier provides an insightful analysis into why the plaintiffs did not state an ADA claim as a matter of law.  In the fullness of time, we hope to see whether district courts when deciding a dispositive motion adopt Judge Lohier’s analysis concerning a business’s long-held prerogative to choose among effective, appropriate auxiliary aids and service to make its goods and services available to disabled individuals.  The complaints filed in these cases essentially allege that the businesses did not provide braille gift cards, an auxiliary aid the plaintiffs allegedly wanted even though they did not request it.  Based on Department of Justice (DOJ) regulations and guidance, Judge Lohier disagreed that a Braille gift card was the sole appropriate auxiliary aid in the circumstances alleged in the complaints.

What also remains to be seen is whether district courts apply the reasoning of the Second Circuit, including Judge Lohier’s concurring opinion, to website accessibility lawsuits, another type of public accommodation claim that has maligned businesses for the past decade.  Website accessibility lawsuits share many of the same deficiencies as the gift card lawsuit and are filed by the same plaintiffs (and their attorneys).

The City of Bloomington, Minnesota is the latest city in Minnesota to join the cities of Minneapolis, St. Paul and Duluth in enacting an Earned Sick and Safe Leave ordinance (ORDINANCE NO. 2022-31). The Ordinance, which largely mirrors the requirements of the City of Minneapolis’ Sick and Safe Time Ordinance goes into effect on July 1, 2023. Specifically, the Ordinance requires employers with five or more employees to provide employees with 1 hour of sick and safe time for every 30 hours worked within the geographic boundaries of Bloomington, up to a maximum of 48 hours in a year. Employers with fewer than five employees must still comply with the requirements of the Ordinance, but may provided the sick and safe time as unpaid.

Who is Covered?

All employers with at least 1 or more employees are covered, regardless of if the employer has a physical presence in Bloomington. The definition of “employer” includes an individual, corporation, partnership, association, nonprofit organization, or group of persons. It does not include the United States government, the State of Minnesota, or any county or local government, except the city of Bloomington.

Only employees, including exempt and non-exempt employees, working at least 80 hours in one year on a full- or part-time basis, or temporary basis, in the city of Bloomington are “covered employees” under the Ordinance.

Employers may use their existing paid time off (“PTO”) policy or other paid leave policy to satisfy the requirements of the Ordinance so long as the existing policy meets or exceeds the minimum requirements of the Ordinance.

Accrual of Paid Sick Time

Covered employees must accrue a minimum of 1 hour for sick and safe time for every 30 hours worked within the City. Employers are permitted to cap the accrual at 48 hours in a calendar year. Employees must be permitted to carry over any accrued but unused sick and safe time into the following year, subject to a total cap of 80 hours at any time.

New employees begin to accrue sick and safe leave at the commencement of employment or on July 1, 2023 whichever is later, but they cannot begin to use their paid sick and safe leave until 90 calendar days after the start of their employment.

Use of Sick and Safe Time

Similar to the other ordinances in Minnesota, employees may use their accrued sick and safe leave for their own or the care of a family member’s mental or physical, illness, injury, health condition, diagnostic or preventive care.

Employees can also use the leave due to an absence because of domestic abuse, sexual assault or stalking of the employee or the employee’s family member. Employees may use the leave due to the closure of the employee’s place of business or the employee’s need to care for a family member whose school or place of care has been closed due to certain unexpected closures or, in the case of a school or place of care’s closure, due to inclement weather.

 

Employers may require employees to provide up to seven days advance notice when the use of the sick and safe time is foreseeable.

Employees may use paid sick leave in increments consistent with current payroll practices as defined by industry standards or existing employer policy, provided such increment is not more than 4 hours.

Notice and Recordkeeping

The Ordinance requires employers to display a notice promulgated by the City in a conspicuous place at any workplace or job site where any employee works. Additionally, employers must include the notice in their handbook informing employees of their rights and remedies.

Upon an employee’s request the employer must provide the employee, in writing or electronically, the employee’s current amount of (a) accrued sick and safe time; and (b) used sick and safe time. Employers can satisfy this obligation by listing the information on each pay stub or including it on an online system where employees can access it.

Employers must maintain records for each employee showing hours worked (applicable to non-exempt employees), leave available, and leave used for three years in addition to the current calendar year.

Enforcement

The City Attorney’s Office is tasked with the authority to investigate any report of a suspected violation of the Ordinance. For first violations arising during the first year following the effective date of the Ordinance, the City Attorney’s Office will issue a warning letter, notice to correct and attempt to mediate disputes. For subsequent violations the City Attorney’s Office may impose the penalties provided in the Ordinance, including reinstatement, back pay, credit or payment of sick leave, and administrative penalties or fines.

What’s Next?

Covered employers should begin to review their existing policies to ensure compliance with the new sick and safe leave requirements. Additionally, employers will need to post the notice and update their handbooks to include a policy regarding the Ordinance.

For more information about the Bloomington ordinance or other leave laws that may affect your organization, please contact a Jackson Lewis attorney.

The New Mexico Healthy Workplaces Act (“NMHWA”) requires all private employers in New Mexico to provide all employees one hour of paid sick leave for every 30 hours worked. Employees may use up to 64 hours of earned sick leave per the employer’s defined 12-month period. Employees will be able to use earned sick leave for absences due to various reasons delineated in the Act, some of which include family members’ illness or injury and reasons relating to domestic abuse and sexual assault. Employees are allowed to carry over any accrued, unused earned sick leave but employers are not required to allow the use of more than 64 hours per 12-month period.

As an alternative to the accrual method, the NMHWA permits employers to frontload the full 64 hours of earned sick leave every year. There is no waiting period for accrual, and use of earned sick leave as accrued begins on July 1, 2022, or the first day of employment, whichever is later. To use earned sick leave, employees need only make a “reasonable effort to provide oral or written notice of the need for such sick leave” and “to schedule the use of earned sick leave in a manner that does not unduly disrupt the operations of the employer.” When the need to use earned sick leave is unforeseeable, employees must “notify the employer orally or in writing as soon as practicable.” Employers are strongly advised to review their existing paid time off policies to ensure compliance with the Act beginning July 1.

Finally, employers are required to give written or electronic notice to an employee at the commencement of employment of the employee’s right to earned sick leave; the manner in which sick leave is accrued and calculated; the terms of use of earned sick leave; that retaliation against employees for use of sick leave is prohibited; the employee’s right to file a complaint with the Labor Relations Division of the Workforce Solutions Department if earned sick leave as required pursuant to the NMHWA is denied by the employer or if the employee is retaliated against; and all means of enforcing violations of the HWA. For additional information about the NMHWA, please visit our previous article on the Act. For more information about the NMHWA or other leave laws that may affect your organization, please contact a Jackson Lewis attorney.

As many expected based on the draft opinion that was leaked months ago, the U.S. Supreme Court has held the U.S. Constitution does not protect the right to obtain an abortion. Dobbs v. Jackson Women’s Health Organization, No. 19-1392 (June 24, 2022).

Read more here.

Puerto Rico Governor Pedro Pierluisi has signed into law changes reversing portions of the 2017 employment reform law. House Bill 1244 (HB 1244) rolls back and changes the statutory probationary period, vacation and sick leave accrual, and eligibility for the annual Christmas Bonus, among other requirements. The changes go into effect for most employers on July 20, 2022. For certain “small” and “mid-size” businesses as defined in the new law, changes will be effective on September 18, 2022.

Read more here.

Over six months after the Connecticut Family and Medical Leave Act (Connecticut FMLA) took effect, proposed regulations are slated for consideration and approval by the Connecticut Legislative Regulation Review Committee (LRRC). With the exception of nonpublic elementary or secondary schools, all private employers with at least one employee in Connecticut are covered by the Connecticut FMLA as of January 1, 2022.

Read more here.

Illinois has enacted amendments to the Child Bereavement Leave Act, expanding the law’s scope and renaming it the “Family Bereavement Leave Act” (FBLA). The amendments are effective January 1, 2023, and the two major purposes are to: (1) expand the definition of family members covered by FBLA; and (2) include fertility-related losses in the acceptable reasons an employee may use leave under the FBLA.

Read more here.

On May 25, 2022, during Mental Health Awareness Month, the Wage and Hour Division (WHD) of the Department of Labor, the agency responsible for enforcing the Family and Medical Leave Act (FMLA), issued Fact Sheet # 28O and related Frequently Asked Questions, which discuss mental health and leaves of absence under the FMLA.  The publications do not create new law or obligations on employers, but provide detailed discussion, including hypothetical fact-patterns, explaining when an employee may be entitled to a job-protected leave of absence under the FMLA for their own mental health condition, or when they are providing care for a family member with a mental health condition.

In this guidance, the WHD explains that an eligible employee may take job-protected leave under the FMLA for their own “serious health condition or to care for a spouse, child or parent because of a serious health condition” and that a serious health condition can include a “mental health condition.”   Mental and physical health conditions are serious health conditions under the FMLA if they require “1) inpatient care or 2) continuing treatment by a health care provider.”  The DOL explains in the Fact Sheet that serious mental health conditions requiring continuing treatment by a healthcare provider include:

  • “Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either multiple appointments with a health care provider, including a psychiatrist, clinical psychologist, or clinical social worker, or a single appointment and follow-up care (e.g., prescription medication, outpatient rehabilitation counseling, or behavioral therapy); and
  • Chronic conditions (e.g., anxiety, depression, or dissociative disorders) that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.”

The Fact Sheet provides specific examples of when mental health conditions would be covered under the FMLA for an employee’s own mental health condition, when caring for a family member under the age of 18 with a mental health condition, and when caring for a family member over the age of 18 with a mental health condition.

Fact Sheet #28O explains that the FMLA also provides eligible employees with up to 26 weeks of military caregiver leave to care for a covered servicemember and certain veterans with a serious injury or illness.  A serious illness or injury for current servicemembers is one that was incurred in the line of duty “that may make the servicemember medically unfit to perform the duties of their office, grade, rank or rating” or results from the “aggravation in the line of duty on active duty of a condition that existed before the member began service.”  With respect to veterans, a serious injury or illness is one that makes the veteran “medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veteran Affairs or substantially reduces the veteran’s ability to work.”  Serious illness or injuries for veterans also include those “incurred or aggravated during military service but that did not manifest until after the veteran left duty” such as post-traumatic stress disorder (PTSD) or depression.

Finally, Fact Sheet #28O and the related FAQs reiterate the FMLA requirements that employers keep employee medical records, including any records regarding an employee’s mental health condition, confidential and separate from “more routine personnel files” and reinforce the FMLA’s anti-retaliation protections.

Jackson Lewis attorneys are available to assist employers in understanding their rights and obligations under federal and state leave laws including the FMLA.

The Washington Employment Security Department has amended the “waiting period” regulation, WAC 192-500-185, for certain employees who successfully apply to the state’s Paid Family and Medical Leave (PFML) Program.

Under Washington’s PFML, the “waiting period” falls during the first seven consecutive calendar days beginning with the Sunday of the first week that an eligible employee starts taking leave.  During the waiting period, an employee does not receive any pay but still uses one of their available weeks of leave.

Effective June 9, 2022, the waiting period will (a) no longer count against the employees’ benefit entitlement (of up to 18 weeks in some circumstances) and (b) no longer be required for birth parents requiring medical leave immediately following the birth of a child.  Employees who take leave for qualifying military events or to bond with a new child are already exempted from a waiting period.

These changes benefit employees by making their pay from the state consistent with the time off they receive under PFML. The amendment also coordinates with another recent change in the law that treats the first six weeks of post-natal leave as medical leave, rather than family leave, unless the employee chooses otherwise.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our Disability, Leave and Health Management Practice Group.