Supreme Court Punts in ADA Tester Case

Supreme Court “punts” in ADA “tester” case
by James J. Dean

If you are a place of public accommodation under the ADA – such as a hotel, restaurant, school, college, doctor’s office, accountant, realtor, store, car dealership or other business open to the public – you may be sued by an ADA “tester” for disability discrimination even though that person has no plans to visit your establishment or do business with you.

In Acheson Hotels, LLC v. Lauffer, the U.S. Supreme Court had an opportunity to change that. Unfortunately, on December 5, 2023, the Court “punted” the case because the “tester” who filed the lawsuit voluntarily dismissed her case during the appeal. That is unfortunate. Serial ADA “tester” litigation has become a cottage industry. As the United States Chamber of Commerce pointed out in its amicus brief in the case:

Litigation under Title III of the ADA (which prohibits discrimination on the basis of disability in places of public accommodation) has exploded over the past several years. Case filings have more than tripled since 2013 and now count more than 10,000 filings annually. These cases are unique not only in their explosive growth, but also in their geographic distribution. More than half of ADA Title III cases are filed in just three states: California, New York, and Florida.

In the Acheson Hotels case, the plaintiff, Deborah Laufer, used a wheelchair and lived in Florida. She sued Acheson Hotels after viewing its website and claiming that the website lacked information required by ADA regulations. Ms. Laufer sued Acheson Hotels even though she had no intention of going there. Ms. Laufer had sued hundreds of hotels that she had no intention of visiting (she sued over 600 hotels in the five years leading up to this case). She often offered to settle immediately for $10,000 in attorney’s fees and corrective action. Significantly, Ms. Laufer dropped her case against Acheson Hotels after one of her lawyers was sanctioned for lying about his attorney’s fees in court fee petitions and in settlement negotiations. The attorney was demanding $10,000 in attorney’s fees per case even though he was using “boilerplate” complaints.

When faced with an ADA accessibility lawsuit, many commercial establishments, especially smaller businesses, feel pressured to settle quickly to avoid the costs of litigation – even when they do not believe they violated the ADA. This is especially true in ADA “tester” litigation, which will continue to be filed in large numbers in Florida. However, there are defenses to ADA claims, and not all “testers” can satisfy the legal requirements to bring a lawsuit.

So, what should businesses do? First, check your websites and facilities to ensure compliance with the accessibility requirements of the ADA. Second, if an ADA claim is made against you, check your insurance policies to see if the claim is covered by insurance. And third, consider consulting legal counsel about your rights and defenses.

Selected Highlights of Families First Coronavirus Response Act (FFCRA) (March 19, 2020)

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. Here are some highlights of the Act for employers:

FFCRA

  • takes effect: April 1, 2020
  • three major provisions for employers:
    • amends FMLA
    • establishes paid sick leave requirement
    • provides for tax credits for employers

Emergency Family and Medical Leave Expansion Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • if employed at least 30 days
  • Triggering Event for Benefit:
    • unable to work or telework due to need to care for employee’s child (under 18 years old) because child’s school or place of care is closed due to a public health emergency
  • Benefit:
    • 12 weeks of job-protected leave
    • 1st 10 days of leave may be unpaid
    • remainder of leave must be paid at two-thirds the employee’s regular rate
    • however, paid leave is capped at $200/day and $10,000 aggregate per employee
    • job restoration entitlement may not apply to small employers (less than 25 employees) under some circumstances

Emergency Paid Sick Leave Act

  • Employers covered:
    • if have less than 500 employees
  • Employees covered:
    • all full-time and part-time employees (regardless of length of employment)
  • Triggering events:
    1. Employee is subject to a federal, state or local quarantine or isolation order related to COVID-19;
    2. Employee has been advised by a health care provider to self-quarantine due to COVID-19 concerns;
    3. Employee is experiencing COVID-19 symptoms and seeking medical diagnosis;
    4. Employee is caring for an individual subject to a quarantine or isolation order or who was advised by a health care provider to self-quarantine due to COVID-19 concerns;
    5. Employee is caring for a son or daughter because the child’s school or place of care is closed or unavailable due to COVID-19; or
    6. Employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
  • Benefit:
    • Full time employees entitled to:
      • 80 hours of paid sick leave at employee’s regular rate – for reasons 1, 2 and 3
      • 80 hours of paid sick leave at two-thirds of the regular rate – for reasons 4, 5 and 6
    • Part-time employees entitled to:
      • Paid sick leave based on average number of hours worked during the prior 6 months
  • Caps on paid sick leave:
    • Capped at $511/day and $5,110 total per employee for reasons 1, 2 and 3
    • Capped at $200/day and $2,000 total per employee for reasons 4, 5 and 6
  • Other provisions:
    • Sick leave does not carry over to following year

Tax Credits for Paid Sick and Paid Family and Medical Leave

  • Employers entitled to payroll tax credits for payments made to employees

The foregoing is merely a summary of some of the primary provisions of the Act which apply to employers generally. There are many other detailed provisions that are not set forth here. If you have a particular question regarding how the FFCRA applies to you and your employees in particular, you should contact your legal counsel for advice.

For more information, contact:

James J. Dean, Esq.

jdean@lawfla.com

850-222-0720

Are Opening Prayers at School Board Meetings Constitutional?

It is common in Florida for School Boards to open their meetings with a prayer or invocation. The practice lends a sense of solemnity to the meeting and can help to engender a positive atmosphere for discussion and decision-making. However, the practice of opening meetings with a prayer is being increasingly challenged in the courts as a violation of the Establishment Clause of the federal constitution.

On July 8, 2019, the federal Eleventh Circuit Court of Appeals (which covers Florida, Georgia and Alabama) issued a decision which will have important implications for School Boards and Superintendents in Florida. In Williamson v. Brevard County, a case filed by a group of Secular Humanists and atheists, the court held that Brevard County’s practice of opening its county commission meetings with prayer violated the Establishment Clause. The court made clear in its decision, however, that not all opening prayer practices are invalid. Much depends on the process used to select the persons who will offer the invocation.

In the Brevard County case, the individual commissioners took turns selecting the person to give the invocation. There were no clear guidelines to follow. Instead, each individual commissioner had broad discretion regarding who they would select. In practice, the commissioners selected representatives from only mainstream, monotheistic, faiths. They excluded other religious groups from consideration. For example, they categorically excluded deists, Wiccans, Rastafarians and polytheists, and they would likely exclude Hindus, Sikhs or followers of Native American religion. The court held that this violated the Establishment Clause because the commissioners were excluding certain religious groups based on the content of the groups’ religious beliefs.

Although the court held that Brevard County’s practice was a violation, the court also clarified that not all opening invocations are invalid. The court explained that just because an opening invocation is religious, or even sectarian, does not mean there is a violation – provided the selection process is neutral and does not discriminate against certain religious groups based on their beliefs.

School Boards and local governmental agencies that open their meetings with prayer should review their policies to ensure that their criteria and selection process is compliant with the principles set forth in the Williamson v. Brevard County decision.

Case Information: Williamson v. Brevard County, Case No. 17-15769, 2019 WL 2910807 (11th Cir. July 8, 2019).

For more information, contact:

James J. Dean, Esq.

jdean@lawfla.com

850-222-0720

Employee Medical Leave Requests: Balancing the FMLA and ADA

When employees request a leave of absence due to medical issues, the Family and Medical Leave Act (FMLA) requires covered employers, those with 50 or more employees, to provide employees twelve weeks of unpaid leave for qualifying medical reasons. However, what if an employee needs more than twelve weeks of leave? Or, what if an employee has already used all of the employee’s FMLA leave for the year but needs more time off? Is the employer required to grant long periods of medical leave to employees in these circumstances? That question was recently addressed by two federal courts of appeal.Continue Reading Employee Medical Leave Requests: Balancing the FMLA and ADA

Credit Balances – It’s Not Yours to Keep

Most health care providers are familiar with the concept of a “credit balance”. A credit balance can occur when a health care provider is overpaid for a service that was provided. Sometimes the credit balance can occur when a patient or the patient’s third-party insurer pays too much for the service provided. Other times a credit balance may occur when there is more than one insurer and both insurers pay for the same service. For a variety of innocent reasons credit balances are not uncommon in a health care practice.Continue Reading Credit Balances – It’s Not Yours to Keep

Centers for Medicare and Medicaid Services Announces Transition to Targeted Probe and Educate Strategy

In August, 2017, the Centers for Medicare & Medicaid Services (“CMS”) announced a major change in how it will approach the selection of Medicare claims for improper payment review.Continue Reading Centers for Medicare and Medicaid Services Announces Transition to Targeted Probe and Educate Strategy

Effective Communication With Hearing Impaired Persons in Conjunction With the Provision of Medical Services – Silva v. Baptist Health South Florida, Inc.

On May 8, 2017, the Eleventh Circuit Court of Appeals issued its opinion in the case of Silva v. Baptist Health South Florida, Inc. This decision is of importance to the health care industry as it establishes the standard under Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”) and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehab Act”) for the sufficiency of communication with hearing impaired persons in conjunction with the provision of medical services.Continue Reading Effective Communication With Hearing Impaired Persons in Conjunction With the Provision of Medical Services – Silva v. Baptist Health South Florida, Inc.

Court Determines Title IX Applies to Residency Program at a Private Hospital

The Third Circuit Court of Appeals recently decided a case brought against a private hospital by a female participant in the hospital’s medical residency program that may have important implications for residency programs. The plaintiff alleged that the hospital was liable under Title IX of the Education Amendments Act of 1972 for creating a hostile work environment, retaliation, and quid pro quo harassment, along with several state-law claims. The plaintiff claimed that the director of her radiology residency program sexually harassed her over the course of several months. After she complained about the director’s behavior, she was dismissed from the residency program.Continue Reading Court Determines Title IX Applies to Residency Program at a Private Hospital

Amendment 7 and the Federal Patient Safety and Quality Improvement Act – Charles v. Southern Baptist Hospital of Florida, Inc.

On January 31, 2017, the Supreme Court of Florida issued an opinion regarding the interplay of Amendment 7 (Art. X, § 25, Fla. Const.) and the Federal Patient Safety and Quality Improvement Act (42 U.S.C. §§ 299b-21 to 26) (“FPSQIA”). This decision is of extreme importance to the health care industry in Florida as it will significantly impact the peer review activities of hospitals and other health care providers within the state. Continue Reading Amendment 7 and the Federal Patient Safety and Quality Improvement Act – Charles v. Southern Baptist Hospital of Florida, Inc.

The New I-9 Form And Increased Employer Fines For Violations

On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new I-9 Employment Eligibility Verification Form. (All employers are required to complete an I-9 Form for each new employee to document the verification of the employee’s identity and authorization to work). The new I-9 Form is effective January 22, 2017, employers should start using the new I-9 Form immediately for all new hires and reverifications. The prior version, which has been in effect since 2013 is now obsolete. The new I-9 Form can be found here: https://www.uscis.gov/i-9.Continue Reading The New I-9 Form And Increased Employer Fines For Violations