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Hurricane Irma did a number on South Florida and the Keys and while many people have no power and damage (myself included), we are all getting back to work.  Over the next few days I’m going to focus my posts on post-Irma employment law issues.

Before and during the storm, I noticed some companies were getting bad press for requiring their employees (mostly low paid non-exempt [hourly] service workers) to come into work when Florida’s Governor, Rick Scott, was imposing mandatory evacuations in many areas.

First, requiring employees to work during mandatory evacuations means bad press on social media and in the news.  These days, news stories can quickly become viral and can negatively impact your company brand and your business.

Second, while there is no Florida state law that prevents termination of at-will employees who fail to report to work (even during an emergency) there are other protections for employees.

Specifically, the Occupational Safety and Health Administration (“OSHA”) provides guidance to employers and employees regarding hurricane preparations and post-storm response.  Also, under the OSHA Act, it is against the law for an employer to retaliate against an employee who demands a safe and healthful workplace.  Obviously there are exceptions to the OSHA rules for first responders and some government workers.

While the OSHA anti-retaliation provision may not protect an employee who evacuates, if you are demanding that your employees work in an area where there is a mandatory evacuation your employees could certainly claim that the workplace was not safe at that time.  Employers in this situation may want to consider closing their operations so employees can evacuate or prepare for the impending storm.  Alternatively, companies may want to ask for volunteers to work during an emergency situation and/or not impose harsh penalties on employees who are no-shows.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

As the weather in South Florida turns cooler and the snow birds start flying south, there is a remarkable increase in the number of little dogs (and other animals) one sees in their local Publix grocery stores and favorite cafes.  Even off season, I recently spied a bunny rabbit at one of the restaurants I frequent on a regular basis.

This is my dog Simon.

That bunny encounter spurred my curiosity regarding whether anyone had been prosecuted under the Florida Law  passed in 2015 making it a second degree misdemeanor to misrepresent an animal as a service animal.  The answer, at least as of last year, is no.  No one has been criminally charged in Florida under the fake service dog law.

And in the bunny instance, it is clear that Bugs Bunny was in violation of Florida law and the Americans with Disabilities Act (“ADA”).  Additionally, the restaurant owner could have gotten in trouble with Department of Health or put its business license at risk.  Florida law doesn’t permit bunnies or kitty-cats or monkeys, or parrots (there is one I’ve seen dining out regularly in my local down town) at restaurants inside or outside (outside means within designated outdoor portions of a public food service establishments).  Once, I even dined next to a kitty-cat in a stroller while in Key West (only in Key West).

Key West kitty in a stroller.

Its quite confusing for business owners when it comes to which animals can accompany customers into their businesses.  Many business owners are afraid of ADA Title III litigation so they don’t do anything when people bring animals into their stores or restaurants, but that may open them up to other types of litigation. For example a few years ago a Publix employee in Palm Beach was bitten by an emotional support animal (“ESA”).

The first thing to understand is there is a big difference, under the law, between a service animal and an emotional support animal.

Service animal under the ADA:

  • Almost always a dog (sometimes a miniature pony but no other kind of animal);
  • Individually trained to assist a person with a disability;
  • Generally, businesses must permit a service dog anywhere the public is permitted.
  • Service dogs must be harnessed, leashed, or tethered, unless these devices interfere with the service dog’s work or the individual’s disability prevents using these devices.  In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

When it is not obvious what service a dog provides, only limited questions are permitted.  A business’ staff may ask two questions:  (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform.

Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.

A person with a disability cannot be asked to remove his or her service dog from the premises unless:  (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken.  When there is a legitimate reason to ask that a service dog be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the dog’s presence.  Businesses that kick out customers with service dogs (or what they suspect as fake service dogs) should consider recording the dog and customer in case they are later sued under the ADA Title III.

Establishments that sell or prepare food must allow service dogs in public areas even if state or local health codes prohibit animals on the premises.

Here in Florida there are lot of people carrying around purse dogs and other pets that enter businesses and claim they can do so because the dog or animal is an emotional support animal (“ESA”).  Emotional support animals are not afforded the same access as service dogs.  So if a customer brings in a bunny or cat or snake into your business establishment they can be shown the door even if they claim that the animal is a service animal (remember that service animals under the ADA can only be dogs or miniature ponies) or ESA.  If someone claims their dog is an ESA that can be a murkier situation for a business owner, but dog ESAs are also not protected under the ADA.

An ESA is not a pet, rather it is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability.  The person seeking the emotional support animal under fair housing laws must have a verifiable disability (the reason cannot just be a need for companionship).  The animal is viewed as a “reasonable accommodation” under the Fair Housing Amendments Act of 1988 (FHA or FHAct) to those housing communities that have a “no pets” rule.

ESAs are also provided protection under the Air Carrier Access Act which is why you see so many dogs (and other animals) on planes these days.  Airlines are somewhat stuck and many people are gaming the system to avoid having to pay to fly their dogs and other pets and to get around other rules for pets on planes. There have been all kinds of incidents including dog attacks and planes having to be diverted due to pet poop such that many in the airline community are lobbying for new rules on pets on planes.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Back in the Spring, I posted about the next frontier in ADA Title III litigation (web site accessibility), see my posts here and here.  Since those posts, the next frontier has shown up, with a vengeance, in the Southern District of Florida.

This summer, the first trial (in the country) on ADA web site accessibility was held right here in the matter of Carlos Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16–23020 (S.D. Fla.).

Following trial in the Winn-Dixie matter, U.S. District Judge Robert Scola ruled that:

  1. Winn-Dixie’s website was a “place of a public accommodation” under the ADA.
  2. Based on the testimony of the plaintiff and his expert, Winn-Dixie’s website was not sufficiently accessible.
  3. Accordingly, the court issued injunctive relief and also awarded attorneys’ fees.
  4. The injunctive relief included a requirement that Winn-Dixie adopt and implement a website accessibility policy that ensures its website conforms to the WCAG 2.0 criteria.  Although the court did not note specify a level of compliance with WCAG 2.0 (A, AA, AAA).
  5. Further, the court ordered that any third-party vendors who interact with the website must also conform to such criteria.
  6. The court also ordered that Winn-Dixie homepage include a statement concerning its website accessibility policy.
  7. Winn-Dixie was also required to provide training to all employees who write or develop programs or code, and test its website to identify any incidence of nonconformance every three months for the next three years.

Since the ruling in the Winn-Dixie matter, there has been a summer deluge of cases filed in the Southern District of Florida and plaintiffs’ attorneys appear to be working their way through each and every national corporation to test web site accessibility and then sue for purported deficiencies.  While its mostly been the large national corporations that have been the target of these lawsuits or demands, there is no reason to believe that mid-size and smaller corporations are not next on the list.  Here in the Southern District of Florida, because of the legal precedent of the Winn-Dixie case (although nonbinding), I expect that web site ADA Title III litigation will follow the physical-plant ADA Title III litigation trend with the plaintiffs’ attorneys working their way down from big to small companies.

Retailers and other businesses (including restaurants, hotels, and other service based businesses) with web sites plus physical locations are advised to develop website accessibility policies for their web access and state those policies on their homepages.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Please see my update, over on Fox’s In the Weeds, on the Florida Legislature’s success in passing a medical marijuana bill during the recent special session.  Now we wait on Governor Rick Scott to sign the bill, which he is expected to do.

Once Gov. Scott signs the bill into law, Florida Statute s. 381.986 (Compassionate use of low-THC and medical cannabis law) will be amended to state the following:

This section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy.  This section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.  This section does not create a cause of action against an employer for wrongful discharge or discrimination. Marijuana, as defined in this section, is not reimbursable under chapter 440.

What that means is that employers will have some protections to maintain drug free workplaces and to discipline or terminate employees under the influence of medical marijuana.  But with all new laws, litigation establishing rights of employers and employees is likely.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Last month I posted Part I on this topic which covered the state of federal statutes and regulations regarding web site access as well as the most recent Florida Federal case law on the topic.

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This time I around, I want to talk about reality for companies.

Plaintiffs are bringing these website cases here, and elsewhere, and many have already figured out how to plead the claims to survive the motion to dismiss phase.  So, if your company has an inaccessible website and a physical location and the two are physically linked then you are eventually going to face a Title III ADA website case.

Physically linked can mean situations such as:

  1. you offer coupons on your website that people can use in your store or restaurant;
  2. you advertise specials on your website that apply in your store or restaurant;
  3. customers can order merchandise on your website and pick it up at your store;
  4. customers can return merchandise ordered online to your store;
  5. you post your menus on your website for your restaurant; and
  6. you have an online reservation system for your hotel or your restaurant, etc.

If you want to get your website accessible, what should you do?  Head back to the DOJ guidance and consider working towards moving your website to WCAG 2.0 AA or higher level of accessibility.  Since websites are always changing and being updated, you can ask your ecommerce teams (internal and external) to begin moving content or updating content so it meets these standards over time.

The WCAG standards include such things as making content Screen Reader Software (“SRS”) compatible, adding captions to video, photos, etc.  But, there are many other issues that come with meeting the WCAG 2.0 AA standards that involve organization of website, navigation between pages, checkout for ordering, etc. that may require expert guidance.

While the ADA Title III regulations and standards have not caught up with technology, the plaintiffs’ bar has gone beyond.  If you want to avoid litigation regarding your website (and it has a nexus to your companies’ physical locations), you need to think about moving forward with redesign of your website or at least a retrofit that includes SRS compliance until regulations are in place.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Florida, and particularly South Florida, has always been on the leading edge of legal trends that involve mandatory attorneys’ fees for plaintiffs.  For many years, the United District Court in and for the Southern District led the pack in the number of Title III cases filed under the Americans with Disabilities Act (“ADA”).  In 2013, one in every five ADA Title III case was filed right here in the Southern District.  In fact, the Southern District has a 435-page list of all the addresses where ADA Title III cases have been filed in an effort to prevent plaintiffs from suing a property location that was previously sued.

Perhaps because that the address list includes just about every physical location in the Southern District of Florida, the plaintiffs’ bar has now gone virtual and the hot new trend in ADA Title III litigation is website access.

The Feds

Starting with the basics, Title III of the ADA prohibits discrimination in public accommodation:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases or operates a place of public accommodation.

A location is a place of public accommodation if its operations “affect commerce” and it falls within one of the twelve categories described in the statute.  The twelve categories cover just about everyplace one might go during a day except for your own private residence.  The types of places covered include places of lodging, restaurants, bars, movie theaters, stadiums, concert halls, auditoriums, stores, banks, gas-stations, professional offices (i.e. doctor’s and lawyer’s offices), transportation facilities, all types of recreational facilities (i.e. zoos, libraries, galleries), and all types of schools and colleges, etc.

If you review the twelve categories in detail, you will likely notice that “website” and ” internet” and “online” are not listed anywhere.  On the other hand, the Department of Justice (“DOJ”), as evidenced by its enforcement and litigation activity, interprets places of public accommodation to include companies’ online websites.

In fact, the DOJ issued a Notice of Proposed Rulemaking directed to entities governed by Title II of the ADA (i.e. government agencies) which identified the barriers disabled people encounter when using the internet and best practices for removing or reducing those barriers.   The DOJ (and some Courts) propose utilizing Web Content Accessibility Guidelines (“WCAG”) 2.0 as the standard (and the regulations) to judge whether a web site is accessible or not.

It is unclear when the Federal government, under the new administration, will complete its rulemaking under Title II and then move on to Title III (commercial entities).  As such, unlike physical locations, there are presently no governing regulations for website accessibility.

 

23412684 - dog with computer keyboard. top view of funny dog using computer keyboard and mouse while isolated on white

The Courts

Alternatively, maybe the Courts will give us some more definite guidelines.  Back in 2002, the United States Court of Appeals for the Eleventh Circuit Court of Appeals (which has jurisdiction over federal cases originating in the State of Florida) was on the front edge of this topic when it analyzed similar issues regarding the once popular “Who Wants to Be a Millionaire” gameshow in the Rendon v. Vallycrest case.    In Rendon, the issue wasn’t focused on the internet but on an “automated fast finger telephone” selection process.  The Rendon Court determined that the show, since it was held in a theater, was a place of public accommodation.  The Renden Court went on to rule that since the telephone screening process imposed significant barriers to disabled people who wanted to be on the show, ADA Title III applied to the telephonic application process because it restricted access to the place of public accommodation (i.e. the studio).

Since 2002, the case law in the Eleventh Circuit and throughout the Florida Federal district courts has been somewhat muddy.  The most recent case related to this website accessibility is Gomez v. Bank & Olufsen America.  In Gomez, Mr. Gomez alleged that he could not utilize the defendant’s website because it is not compatible with his screen reader software (“SRS”).  While Mr. Gomez’s Complaint linked the defendant’s website with its physical locations the focus of his Complaint, in this instance, was his reliance on using the internet to shop because of his visual impairment (he is legally blind).  Judge Joan Leonard ruled his claim failed because the ADA does not require a place of public accommodation to have a web site at all.  However, she also ruled that if a place of public accommodation does have a web site it cannot impede a disabled person’s full use and enjoyment of the brick and mortar locations.  Mr. Gomez did not replead his claims, as he had the right to do under this recent order, so the case law remains unsettled in the Southern District.

Check back soon for my Part II post on this topic.  

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Last month, I posted about one Florida House proposal to implement Amendment 2 (which legalized medical marijuana this past November).

Thereafter, several other bills have been put forward and one in the House, HB 1397, has now passed the House Health Quality Subcommittee.  HB 1397, written by House Majority Leader Ray Rodrigues, is quite restrictive and basically the opposite of SB 614 (the topic of my last post).  Specifically it provides the following:

  • A requirement that non-terminal patients must have a doctor at least 90 days before they can get a cannabis recommendation.
  • Bans the smoking of medical marijuana.
  • Also bans edibles like brownies and “vaping.”
  • Slow expansion of the number of licensed growers and dispensaries.  HB 1397 grants licenses to the seven existing growers (previously licensed under Haleigh’s Hope law).  In addition, five applicants denied last year by the Department of Health would obtain licenses after 150,000 patients have registered.  New licenses would be allowed once there are 200,000 patients registered.

46348049 - medical marijuana in jar lying on prescription form near stethoscope. cannabis recipe for personal use. legal drugs concept

Heading back to the Florida Senate, Rob Bradley, has proposed SB 406 which has also made it past a key committee (the Senate Health Policy Commitee).  SB 406 is a more “in the middle” bill and proposes the following:

  • The proposal does not include any language that would restrict doctors’ ability to decide for themselves if patients qualify for marijuana treatment.
  • Nonresidents would be allowed to apply to receive medical marijuana in Florida as long as they are able to get medical marijuana in their home state and qualify in Florida.
  •  The Department of Health would be required to have computer software system to track marijuana from “seed to sale”.
  • Patients would also be allowed to increase their supply from 45 to 90 days or even more than 90 days with a doctor’s approval.
  • The Bill would increase the number of marijuana dispensaries, expanding the number of businesses by five more when the state has 250,000 patients, 350,000 patients, 400,000 patients and then every 100,000 thereafter.
  • At least one of the five dispensaries would have to be a black-owned company.
  • The Bill also proposes a new medical marijuana research group at the Moffitt Cancer Center in Tampa.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

How do you respond when someone tells you they practice voodoo?  How about Santeria or Rastafari?   Do you laugh or scoff in response, do you start singing Sublime??  Here in South Florida, a multicultural and multi-ethnic area, there are a plethora of minor religions being practiced by thousands of people.  As a result, laughing or kidding about someone’s religion, even if seems like a joke to you, is the wrong move in an employment setting.

As an example, news of a recent employment lawsuit filed by a follower of the Yoruba religion, the African ancestor to voodoo and Santeria, who claims discrimination because her employer was making fun of her religion and allegedly restricting her ability to wear her religious garb.  Specifically, Jenessys Gomez, alleges that her bosses and co-workers made fun of her after she started wearing Yoruba-mandated white from head to toe, including a white cover over her shaved head.

42101574 - religious symbols

This latest lawsuit is a good reminder to employers that Title VII covers all kinds of religions and even non-theistic beliefs.  The EEOC guidance on religious observance provides the following:

Title VII protects all aspects of religious observance and practice as well as belief and defines religion very broadly for purposes of determining what the law covers.  For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.  An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it.  Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

When it comes to religious garb or grooming, employers should tread carefully and only limit an employee’s right to wear their religions garb or abide by their religions grooming requirements if, and only if, it creates a real workplace safety, security, or health concerns.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

In November 2016, Florida voters overwhelmingly approved, with more than 70% voting yes, expanded medical marijuana by passing Amendment 2.

Now comes the tough work of implementing Amendment 2.  One bill, SB 614, proposes to throw out the current medical marijuana system in Florida (which was set up in 2015 to grow, process and distribute low-THC cannabis oil) which strictly capped the number of businesses allowed to participate in medical marijuana.

37140040 - florida state flag on cannabis background. drug policy. legalization of marijuana

St. Petersburg Republican Jeff Brandes, the proponent of SB 614, calls the current system “state sanctioned cartel” that limits competition and results in higher prices.  At present, the Florida medical marijuana system is limited to only seven vertical license holders.  A “vertical license” means that the license holder must do it all and grow, process and distribute the product.  And, by maintaining the current system it will obviously severely restrict businesses who want to be involved in what will be big business under Amendment 2.

Senator Brandes’ plan would get rid of the vertical license system and instead create four types of licenses:  one to grow marijuana, one to process marijuana, one to transport marijuana, and one for retail centers.  Each county, and Florida is a large state with 67 counties, could have one retail center per 25,000 residents, or nearly 800 statewide.  But, the bill still permits local governments to outright ban retail dispensaries.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Who could have ever guessed that post same-sex marriage legalization, litigation would focus on the issues of wedding cakes and wedding florists.  But, now comes recent news that the case pending in Washington State involving the florist who declined to provide flowers for her friend’s gay wedding has lost her case at the state level.

As Barronelle Stutzman explained, in her own words to The Seattle Times, because she is a Christian weddings have a particular significance to her and despite her long friendship with this particular gay customer, even knowing that he was gay for many years, she simply could not provide a special arrangement of flowers for his wedding due to her religious beliefs.

I just couldn’t see a way clear in my heart to honor God with the talents He has given me by going against the word He has given us.

The Washington Supreme Court held, in unanimous decision, that her floral arrangement talents did not constitute protected free speech, and that providing flowers to a same-sex wedding would not serve as an endorsement of same-sex marriage.

As Stutzman acknowledged at deposition, providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism.

Ms. Stutzman indicates that she will appeal the decision to the Supreme Court of the United States.

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As I explained back in 2015, Palm Beach County’s public accommodation law was amended to greatly broaden the types of businesses covered as public accommodations.  As a result, cake bakers and florists are covered by the law which means that turning away customers based on a religious basis is asking for trouble and litigation.  To avoid litigation, businesses including small businesses, should serve all customers unless there is a safety or security reason not to.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.