Grandfathering Under the ADA Is Not A Thing

100 Year old BuildingFor all of you businesses in cool brick lofts, I’ve got some bad news for you. Grandfathering under the ADA is not a thing.

Everyone thinks it is, though. It’s a persistent rumor leading to poor decisions. I hear the grandfathering rumor all the time. All. The. Time.

So I feel the need to say it again. Just because the building is old doesn’t mean that your business doesn’t have to comply with the ADA. Grandfathering under the ADA does not exist.

Most California businesses find this out the hard way.

In California, a disabled plaintiff can get damages and attorneys’  fees for going to a business that is not to code under the ADA. So these suits are rampant and entire law firms exist just to bring them.

In other states, the availability of damages varies. So the attractiveness of a lawsuit to lawyers also varies. But, that doesn’t mean the businesses can’t or won’t get sued.

And if you are a commercial tenant, you probably won’t be able to blame it on the landlord. Quite the opposite: your landlord will also get sued and you’ll be required to indemnify him.

So beware. This is a trap for those who live in old towns, like our headquartered city of Saint Louis, Missouri.

Video Transcript:

Say your business is in a 100 year old brick warehouse.

Is it correct I’m grandfathered out of the Americans With Disabilities Act accessibility regulations?

Sorry. Grandfathering is a myth. It doesn’t exist under the ADA.

That means two things. First, you may not receive permits from the city to open or improve your business until you bring your building up to code.

Second, you could get sued.

The ADA is what’s called a “complaints driven” law. So someone who notices your building isn’t ADA accessible has the right to sue you.

However, in many states the plaintiff won’t be entitled to damages even if they win because the state has to make an extra law to create damages.

California is an example of a state that gives a plaintiff damages for bringing an ADA accessibility case.

But in all states, a lawsuit can result in a court order requiring you to bring your building into ADA compliance, even if it is expensive.

Confused about possible risks or liabilities in your business? Get peace of mind by having us on call for less than $5 per day. Call us and ask about our Peace of Mind Plan at 800-449-8992 or visit http://peaceplan.biz for details.

Can I Require My Employees To Be Nonsmokers?

Non-Smoking Employees When I first started practicing law, I was asked by a fitness-conscious employer whether he could require his employees to quit smoking.

After some research into the Americans with Disabilities Act, I concluded, “no.” Basically, I concluded that smoking interferes with a major life activity — namely, breathing.

The senior lawyers whom I worked with disagreed.

They had some good points at least politically. Being a smoker is not a sympathetic status in California.

But a decade has passed and the ADA has broadened. And I’ve become more experienced as an employment lawyer, so I have thoughts on other laws that inform this situation.

So this video has my thoughts on whether you can make your employees be non-smoking.

Video Transcription:

Sometimes employers ask, “Can I require my employees to be nonsmokers?”
Some employment lawyers will say it’s acceptable because it’s not illegal to discriminate against smokers.

But you could be risking a disability discrimination claim because smoking is a physical addiction that may impair a major life activity, such as in situations when the person develops lung or throat disease.

In addition, employers do not have the right to inquire about an employee’s health and medical history, including at a hiring interview.

In requiring your employees to be nonsmokers, you may run the risk of violating these laws.

Employers do have the right to designate the workplace as smoke free.

However, employers do not have the right to dictate how employees spend their breaks, such as unpaid lunch breaks, when employees are free to leave the premises.

If you are worried about your employees’ health, try offering access to a smoking cessation program.

If you offer employee health insurance, many such programs are offered as part of the insurance plans and can be promoted by human resources.

Ask us how we can keep you safe from lawsuits with our Employer Protection Package by calling us at 800-449-8992 or emailing us at [email protected].

Do Employers Have to Accommodate Employees Who Object to Serving Gay Customers Based on Religious Beliefs?

Graveyard

Are Christian Religious Beliefs and Practices Dead At Employment?

So I have a heavy topic for you today: Do employers have to accommodate employees who object to serving gay customers based on religious beliefs?

Pretend that you own a bakery. You have an employee who sincerely objects against gay marriage for religious reasons. Your employee refuses to bake a cake for a wedding that will be for a gay couple. Can you fire that employee for refusing to bake the cake? Or must you force the employee to bake the cake? Or must you allow the employee to abstain from baking the cake?

As a practical matter, I think the answer to this question depends in no small part on where you live. A jury in California may think about this in a remarkably different way than a jury in Kentucky.

What is a “reasonable accommodation” for a religious belief is context (and probably culturally) dependent. The recent Abercrombie & Fitch and Hobby Lobby decisions by the U.S. Supreme Court underscore how politically driven religious discrimination decisions can be.

Here’s the law. According to the Equal Employment Opportunity Commission (EEOC), “The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.”

Protected religious beliefs are not just for people who are part of a recognized, organized religion. Discrimination protection and accommodations also apply to anyone who has “sincerely held religious, ethical or moral beliefs.”

The anti-discrimination laws are meant to broadly protect people who have sincere religious beliefs and practices without requiring them to prove that they belong to a mainstream church.

Religious discrimination claims typically focus on an employer’s requirement to accommodate days or times for worship and modes of dress. For example, employers are more or less required to allow time off for religious holidays, barring extraordinary hardship.

Employees also cannot be forced to participate in employer-sanctioned religious ceremonies. So you can have a Christmas party, but you cannot force employees to celebrate Christmas at the party, for one common example.

Dress codes must accommodate religious dress, prohibitions and hairstyles. For example, Rastafarians must be permitted to keep their dreadlocks. And you cannot prohibit a Jew from wearing a yarmulke.

This is where Abercrombie & Fitch got into trouble recently. They were sued for not allowing female employees to wear head scarfs as that violated their dress policy. In its defense, Abercrombie & Fitch claimed that the head scarf was not stylish and did not compliment their wares, which they had their employees dress in to display. But this is not a good enough reason to prevent an employee from observing a sincere religious belief.

Title VII (and state laws that follow suit) also prevent employers from forcing employees to act in ways that are against their sincere religious, ethical or moral beliefs. So, for example, if it is against a restaurant server’s religion to dance, an employer cannot make her dance as part of her serving duties — even if it is just for a quick Happy Birthday song.

Employers do not have to accommodate religious practices when it causes “undue hardship,” however. The EEOC explains, “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

So this is where context, culture and a jury would come in. Most accommodations decrease workplace efficiency, so what is reasonable and what is undue hardship?

Let’s returning to our reluctant cake baker. Would it be a hardship for the employer to have a different, non-objecting employee bake the cake? Perhaps it depends on staffing and who is available. Perhaps this employee is the only employee capable of making fondant. Or perhaps there are ten other bakers who could easily do it.

If it is possible for the employer to not require the employee to do something against their sincerely held moral beliefs, it may be better to put a different worker on the task.

If the employer cannot, he may be justified in forcing the employee to comply, on pain of termination.

I am certain that a typical California jury would be unsympathetic to the employee in this situation — although I can conceive of a jury make up in some places in California where this would not be certain. I would also be less certain in Missouri, where feelings about gay marriage are more varied. So this is why I would say that the answer of what is reasonable and required, versus what is “undue hardship” somewhat depends on where you are at in the country.

An even trickier question is whether accommodating the employee’s beliefs results in an actionable discrimination against the customer, creating liability for the employer. If the employee forces the business to get sued for discrimination by a customer, that is surely an undue hardship.

For example, what happens if the objecting baker tells the customer that they refuse to bake the cake? Or worse, what if the employee begins proselytizing to the customer in a way that becomes offensive (or even considered “hate speech”)? Will the customer sue the bakery for the employee’s behavior?

In most situations where an employee creates a liability for the employer, you can expect the employee to get fired legally. For instance, here’s a true story: a big retailer was told by a customer that she did not want a black delivery driver to deliver her purchase. The manager acquiesced and went to send a white delivery driver. But unfortunately, he told both the white and black drivers why he made the change. Both employees refused to go along and complained to HR about the manager’s decision. The manager was fired and the customer’s order cancelled. Because that manager’s decision put the company at risk for a lawsuit by two employees, the firing was justified.

When it comes to what is required to accommodate religious employees, there is no concrete answer for employers. And with the Supreme Court’s decision in Obergefell, there will be a rise in “conscientious objectors” within the wedding industry.

My advice to employers is to try and accommodate your religious employees as much as possible, without putting your business at risk by inviting suits from customers or making it impossible to operate.

Americans with Disabilities Act 25 Years Old Today

Caring hands for Americans with DisabilitiesOn July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act into law. The law’s goal is to ensure equal opportunities for people with disabilities by mandating greater accessibility and reasonable accommodations in public transportation, public institutions, commercial facilities, and federal and local programs. The ADA also regulates employment practices and mandates that employers provide reasonable accommodations for people with disabilities in the workplace.

 

When President George H.W. Bush signed the law he had to address concerns from the American public that the broad civil rights law would be “too vague or costly, or may lead endlessly to litigation.” In response, Bush used a line from President Reagan’s Berlin Wall speech to remind Americans of the main goal of the Act, saying, “Let the shameful wall of exclusion finally come tumbling down.”

 

Twenty-five years later, there is still significant debate about whether the law in practice is too vague, costly, and encouraging of frivolous lawsuits or unnecessary litigation. But advocates for the disabled state that the law has much further to go in knocking down the barriers people with disabilities may find between them and opportunities for a productive life. Indeed, President Obama’s administration has been expanding the ADA regulations throughout his terms in response to these calls and litigation has not appeared to increase. And as the workforce ages, a full 20% of Americans now qualify as disabled in a way that impacts their daily lives, mobility and employment.

 

In my experience, the ADA is easily violated by employers, because they are either ignorant of its provisions or they do not understand what it requires. That accommodations must be “reasonable” is an amorphous standard that is both hard for employers to implement and also protects employers from being overly burdened with expensive or unworkable accommodations. But employers usually do not want to spend the money required for reasonable accommodations, and that is where they get into significant trouble. I write about the ADA a lot in my blog because it is the one area that I see the most mistakes and the most resistance for compliance.

 

Still, I do not know how — if at all — I would change the ADA. Technology has made accommodations easier. Compassion for people’s health or physical wellness is the right thing morally. And I can even make a business case for accommodations because they help employers keep their valuable employees or add valuable disabled employees to their ranks.

 

Generally, I think it would be a bad idea to regulate accommodations that closely because every situation is unique. More government controls in an attempt to navigate the infinite possibilities will just be a burden on everyone. The ADA is already a heavy hammer for many employers who should be motivated to engage in best practices for their disabled employees. Employers should get advice on how to properly accommodate disabled employees and not wing it, though; and they should not be so recalcitrant when it comes to accommodations.

Boys and Girls Restrooms Have Nothing to Do With Sex

woman legs with red heelsI remember going the the ABA’s employment law boondoggle in 2010. Occasionally, I like to get my law geek on.

On the second day, I attended a panel session on emerging sex discrimination issues. One of the panel lawyers was a transgender woman. We were discussing the difference between sex and gender.

In brief, sex is the state of your genitalia (which is no longer entirely dictated by chromosomes). Gender is what you feel inside.

At that moment, I realized that the sex and gender discrimination laws do not specify that they only protect people born one sex or another.

And there is no place where this was going to be a bigger problem than the bathroom. (Edit: Since writing and publishing this blog in 2015, this has come true.)

I started imagining scenarios where a person in the middle of a sex-transition would have to reassign bathrooms. I could see situations where the women might object, or claim to feel unsafe or sexually harassed. (Edit: This has happened now.)

I could see situations where the transgender person would claim to be harassed, rejected or cat-called by male co-workers, and that becoming a sexual harassment case. (Edit: This has happened now.)

I could see situation where an employer, struggling to make everyone happy, makes no one happy. Perhaps the employer makes a third bathroom for the transgender employee, and that person feels singled out as a result.

The relative population of transgender people is small. But recent publicity regarding their civil rights has expanded the law.

For example, the EEOC ruled in June 2015 that a transgender person has a right to use the bathroom that is consistent with their expressed identity. Policies otherwise are discriminatory and prohibited under Title VII. The EEOC’s position is a harbinger of where the law will go either by courts or Congress.

Sex reassignment surgery is none of the employer’s business, so a person can state their preferred gender and the employer must allow for it, without inquiring as to the state of their genitalia.

There will undoubtedly be other employees who will feel uncomfortable about this. It is fairly predictable that there will be women who feel threatened by a biological man (sex) who identifies as a woman (gender) entering the woman’s bathroom.

It is also predictable that this will create religious accommodation issues. Some religions are stricter about segregation between the sexes than others.

Who knew the potty was so complicated?

As usual, the employer is caught in betwixt and between competing human interests. So what do you do?

Well, at this point, the employer should allow people to use the bathroom of their choice. So the employer is going to have to come up with additional accommodations to avoid religious or sexual harassment allegations.

One such accommodation would be to create a third bathroom that anyone who wishes to be “private” can use. Or get rid of segregation of the bathrooms altogether if that is possible.

For many offices, changing the bathroom construction just won’t be practical. For those employers, you will have to counsel people to get along and navigate disputes through diplomacy. Sometimes you will have to tell an employee to accept the use of the bathroom by a transgender person and to work around it.

The employer should not (and in most cases cannot) challenge someone’s stated gender identity and must treat them accordingly, no matter how it competes with the rights, interests and sensibilities of other employees.

We can all argue about whether this is fair or not. But it’s the facts. On balance, it is much more likely that the transgender person will be the harassed rather than the harasser. So balance your policies towards accommodating the transgender person. And respond carefully to all allegations of harassment or predatory behavior.

What is the Status on Firing Employees for Medical Marijuana Use?

marijuanaThe Current State of Medical Marijuana Use

As of December 2014, states where medical marijuana is legal no longer have to worry about federal drug agents raiding retail operations. Hidden within a 1000+ page spending measure, Congress essentially approved lifting the federal ban on medical marijuana, stating that federal agents were banned from such raids.

The provision has been enacted law roughly one year after the Obama administration directed federal prosecutors  to stop enforcing drug laws that contradict state marijuana policies. Since this directive, federal agents have been limited to targeting medical marijuana retailers and growers who are violating other federal laws, such as money laundering or fraud.

The District of Columbia, along with 32 states have legalized the use of medical marijuana and marijuana related substances. While these laws began to pass in states as early as the 1990’s, it has long remained illegal under Federal Law until now.

While these 32 state laws vary in scope and definition, they share many common features. For example, most states require patients who want access to medical marijuana to apply and be approved for a registration or ID card.

Requirements vary in each state, however generally these cards require for a patient to seek approval from a doctor. Once a patient has received doctor approval and has received their ID card, they can purchase and even grow personal batches of medical marijuana. ID Cards are usually granted by a government agency and require annual renewal.

It does not appear that the federal government currently intends to regulate medical marijuana. It has left any such regulations and procedures up to each state for the meantime. However, the federal government’s change in stance on prosecuting medical marijuana is signifying a larger change in the tide of acceptance of medical marijuana. However, not much guidance has been given to businesses and employers on what to do with the current rise in medical marijuana usage.

Given these new developments, what should an employer know about terminating employees for medical marijuana usage?

Some states, although authorizing termination or discipline for marijuana use or intoxication, prohibit discrimination against individuals on the basis of their being medical marijuana registration cardholders. However, many state laws have created exemptions for employers to restrict any use of marijuana in the workplace or premises. In additions, these laws also usually prohibit an employee from being intoxicated on the job, whether or not the usage was within work hours or on the premises. Some jurisdictions, such as California, have case law supporting an employer’s right to terminate an employee who tests positive for marijuana.

However, it still remains unclear if an employer can terminate an employee for use of medical marijuana with a valid prescription during non-employment hours, with the potential to create a wrongful termination lawsuit. Currently, Arizona, Minnesota and Delaware have enacted laws that prevent employers from firing an employee for a positive marijuana drug test if the employee holds a valid medical marijuana card. However, other western states like California, Oregon, Montana and Washington have enacted laws stating that employers are allowed to enforce a zero-tolerance drug  policy at the workplace regardless of whether the state currently stands on medical and recreational marijuana.

Federal laws further complicate matters in this area. For example, under the Americans With Disabilities Act (ADA), illegal drug use is not generally protected for accommodation as its own illness.  But as a legally-prescribed painkiller that is legal under state but not federal law, the protection of workers using medical marijuana is not at all a given.  Many state courts over the last three years, including courts in California, have ruled that employers do not need to accommodate workers who use marijuana medically. Moreover, any employees of the federal government will fall under federal law, not their own states with regards to medical marijuana. Thus, even an employee who is a valid medical marijuana user in Arizona may still lose their job pursuant to federal law.

That being said, I think that the law is going to change as medical marijuana laws gain traction across the country.  However, employers in California, as of right now, you can feel reasonably safe terminating for medical marijuana use.  However, I suggest that you begin thinking about how you might modify your policies to account for a possible change in the law and whether you really could accommodate medical marijuana use.  If you have more pressing things to do than worry about a hypothetical future change in the law, then sign up for my newsletter, and I’ll let you know when the time comes to revisit this issue. Also please contact our employment law attorneys for a consultation at (800) 449-8992 or contact us online.