VANNOY:

Hello everyone. Thanks for joining us today. Today we’re talking about the Americans With Disabilities Act and everything a growing business needs to know. So I think this is one of those areas where I, I, I think a lot of us as employers think, well, ADA, I have to have an ADA accessible say bathroom, right? We’ve gotta have the right hand rails by the commode. I’ve gotta have an ADA accessible storefront, maybe the wheelchair accessible to, to let customers in. But there’s a whole lot more when it comes to ADA as just more than a, as a requirement of a business so that we don’t discriminate against customers or potential customers with disabilities, but employees. So, as an employer, you have legal requirements if you have or will have more than 15 employees. There’s a whole nother level of compliance that is required for employers and some of these things are just not that obvious.

So have a really qualified guest joining me today. So, if you are a regular watcher, listener of the show, certainly you know, Brian Shenker from Jackson Lewis. Brian’s practice focuses on representing employers in a wide range of workplace matters as well as as preventative advice in counseling. He has extensive experience defending class and collective action lawsuits under federal and state wage and hour laws. He’s successfully defended wage and hour audits conducted by the US and new New York State departments of Labor. Andy regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment, and retaliation. Brian, welcome to today’s conversation.

SHENKER:

Mike. Thanks for having me. A as always a great topic. I think a lot to unpack here today with the ADA.

VANNOY:

Yeah. I mean, and, and we, you know, we, I, I feel like we could say this about every webinar we do together, but this could be, this could be a week long conversation. So we’re, we’re gonna try to hit the, the, the key points for employers and, and what they need to know. And I think the first thing need to know is what the heck is, I think it sounds self-evident. What is the Americans with Disabilities Act? Hey, you can’t discriminate against people with disabilities, but put some more color on this before we kind of dive deep into the actual requirements, the compliance requirements.

SHENKER:

Sure, sure. So, you know, by way of its history you know, the ADA was signed into law back in 1990 by George h w Bush and took effect two years later in 1992. And, and really since you know, title 70 of the Civil Rights Act of 1964 it’s probably the most sweeping non-discrimination legislation we’ve had you know, at least on the federal level. So, you know, it, it’s very important, and, you know, we don’t wanna lose sight of why it’s important. It’s because, you know, here in the US is where well is all around the world. There are a lot of people with disabilities. I believe you know, I’ve seen statistics that some 22% of US adults you know, have a disability. And many of these people are in our workplaces from the US Bureau of Labor Statistics. You know, there’re various fields where we see a lot more disabled individuals like management, professional fields, sales and office service, you know, all have above, you know, 20% of those people may have disabilities. In addition, you know, the E E O C, we see, you know, over 20,000 charges with the disability claim last year and hundreds of millions of dollars award in those claims. So, it’s important and really,

VANNOY:

You mind, can you just speak to, so I, I know I’m maybe getting a little ahead of myself, but this, this is one of those things that I, I, I feel like you know, Mary Simmons and I had a conversation a few weeks back on sexual harassment, and I think you and I touched on this topic on a, on a previous webinar also, that no one intends to sexually harass an employee, right. It’s the, it’s the, it’s the misunderstood areas that get people in trouble. And so, I, I, I, I would encourage people to think about this, and I’m gonna ask you for some, some more edge case examples. If you could, if, if, if your, if your employee has a wheelchair or they’re blind and use a cane and have a seeing eye dog, I mean, these, these, these are the easy ones to deal with, right? Because it’s, it’s obvious that they have some type of a disability then you would make accommodations for and not discriminate against them. Right. can you gimme, maybe give some examples of areas that aren’t so obvious to your, to your stat of 22% of Americans have some form of a disability, what are some of these less obvious disabilities that employers really need to be aware of?

SHENKER:

Yeah, and that’s a great point because right, not, not all disabilities are obvious and there’s, you know, no magic words that will trigger the the, you know, reasonable accommodation, interactive process. So, you know, some of those, for instance you know, mental disabilities, and I think that’s something that’s being spoken, you know, about a lot more these days, you know, mental health. But, you know, mental health can trigger, you know, compliance requirements for employers. Those are things like an anxiety attacks PTs d you know, major depressive episodes and the, like, that substantially limit an individual’s major life activities. And so maybe they aren’t necessarily disabled. They, they may be, or they might just be regarded as disabled with respect to those mental issues. And, you know, one of the things I always preach is that, you know, communication is key in all aspects of compliance with ADA.

But that, you know, essentially, you know, when employers notice behavior or a concern about someone in here, right? We’re talking about maybe, you know something that’s a, a mental health issue. You know, there should be a twofold conversation with this, with, with an employee, right? Number one should be, you know, performance wise, right? Talk about their performance issues and, and where they’re falling short, what the issues are. And then, you know, the, the magic words, the employer can say, you know, what can I do to help you? Right? It, it’s not always coming forward with the, you know, the magic bullet, but starting that conversation about what can be done to assist this individual. And you know, creating that environment. That’s often when, when you get, you know, this is what I need, you know, this type of accommodation, and, and then you get into that interactive process.

VANNOY:

Yeah. Okay. So we know that this is more than somebody in a wheelchair with a, with a or a seeing eye dog. You have mental health, you have anxiety, you have spectrum issues. There’s color blindness, there’s, there’s lots of things that aren’t so obvious that we need to be aware of. Maybe before we, before we start going deeper into some of those examples, let, let’s talk about the actual compliance requirements. And again, the, we hate to say it, but the, the answer increasingly over the years is, it depends, right? Because these, these issues get more and more complex, and because they’re more and more nuanced, right? Right. So the, the hard fact of the matter is there’s a couple hard things, right? Anybody more than 15 employees must comply with ADA. Do I have that? Right?

SHENKER:

Right. And, and that’s really right. That’s the employment part. That’s title one, which covers, you know, employment discrimination based on disability. That’s, yes, that’s, you know, 15 and more. You’re covered by that and possibly your state or local law, you know, which has a lower threshold.

VANNOY:

Right? Right. So we’re gonna be talking federal only for now. So there, there’s the easy black and white part. Give us some of this. It depends on your business. What are the other, what are the other depends, <laugh> categories, I guess for, for what you, if you must comply in what you must comply with.

SHENKER:

Yeah. So, you know, title three of the ADA is probably where it depends, comes into play a more. And title three is the part that covers public accommodations. And so, you know, obviously quite, you know simply, you know, that section applies to places of public accommodations. So, you know, it will depend what type of business you are, whether you are just a brick and mortar business maybe you have a website, but we’ll get into all those issues involving website accessibility a a little bit later. But yes, you know, whether you’re a place of public accommodation can subject a company to all sorts of requirements, even outside of the employment context, to people who might wanna come to your business or you know, attempt to utilize your business’ services. So you know, that, that opens up a lot more in terms of, you know, compliance obligations as well.

VANNOY:

So, I, I, I do wanna keep the majority of our conversation on employer focused angle here, but just give the big buckets, if you could, Brian, for things like accessibility for, for public access.

SHENKER:

Sure, sure. So, you know, accessibility you know, in terms of public accommodations, you know, we’re not only talking about, like I said, websites, but as you mentioned earlier, ramps, you know, physical aspects to the business that allows someone with a handicap you know, or a disability to, you know, access the goods and services that are provided to the public. So you know, this means, you know, that no matter how big or small your company is, you may have obligations here. You know, one of you know, one of the areas I think of, and again, this is something I think comes up a lot more now than it had in the past. You know, allowing service animals, right? So under the ADA a place of public accommodation has to, you know, may have to allow service animals.

Now nothing’s quite you know, black and white as it is with the law here. You know, we have service animals on the other side, we have emotional support animals. That’s one of the areas where the ADA treats treats, you know, those, those animals in different ways that you know, service animals, you know, must be allowed to accompany an individual. You know, these might be individuals with P T S D or anxiety, you know, the, these animals alert or protect those people, you know, maybe someone who has a seizure and, and they’re trained. You know, on, on the other hand, there are emotional support animals, which the, a ADA doesn’t recognize as, you know, surface animals. And, you know, even if you have a doctor’s note expressing the need for an emotional support dog or other animal you know, the ADA does not protect that and, and require that, you know, in going into a place of public accommodation, you know, the store allow you to take emotional support animals so that, you know, that’s one of those you know, intricacies of the ADA when it comes to these public accommodations.

VANNOY:

So, public accommodation, that’s title three that, that, that’s certainly a big part of it. So of Title 1, 2, 3, and four, three being public accommodations, that’s a lot of employ, there’s definitely employee impact, but it a lot of just access to consumers in your customers. Where, where do you want to go next? Because I think Title one is the biggest impact on employees, but tell me if I’m wrong, but do you wanna knock out what title two and four have also?

SHENKER:

Yeah, I mean, look, we can, we can touch on title two, two, and four real quick. Is that I, I don’t think we’ll get into them so much today. Title two of the ADA really focuses on state and local governments and public transportation. And so, you know, again, those are basically government agencies. So that, that’s why we’re not delving into that so much today. And title four of the ADA that’s with regards to telecommunications. So these are things you would hear or be, you know, you, you, you would know what these are. For instance this requires telephone companies to provide you know, continued voice transmission know relay services for people with, you know, speech or hearing impairments you know, closed captioning on public television. You know, that’s, that would, that would come under Title four. But yeah, why, why don’t we jump into, you know, title one and

VANNOY:

And so just to frame it for everybody, Brian, so title four, working backwards is what Telecommunications Title three is about accessibility. And so there’s employee and customer access accessibility requirements that you need to be aware of. Title two is more about state government transportation. I think the meat of our conversation here is Title one, which is employment. Right? So let’s go ahead and un un let’s spend a few minutes parked here at Title one. What are the employment requirements for ADA?

SHENKER:

Absolutely. So, like, like you said earlier this applies to any company with 15 or more employees. And you know, what we’re really talking about here when it comes to, you know, applicability of the ADA to companies is, you know, reasonable accommodations, right? That’s really the biggest issue that that comes up with respect to, you know, employees with disabilities in the workplace, right? Obviously, we know, you know, we shouldn’t intentionally discriminate against anyone with with disabilities. But the accommodation process is often, you know, where employers get tripped up, where we see a lot of litigation, you know, typically if there’s a discrimination claim for a disability, you know, there’s likely it’s likely tied to an accommodation or failure to accommodate claims as well. And so these are, you know, very factually specific yeah, I’d be lying if I told you these don’t on occasion trip me up, you know, even the most experienced of, you know, HR individuals, you know, will you know, get confused by these, but it, you know, it’s a process that, that really you need to go through for each individual you know, disability.

So

VANNOY:

Brian, when you say even for an experienced person to get tripped up like yourself, are you talking about the accommodations themselves and when you need to provide them?

SHENKER:

Right, exactly. Because, you know, there’s no one size fit, all right? It’s, it may be about when to offer an accommodation, you know, what may or may not be reasonable. And, you know, so there are many questions because, you know again, there, there’s so many types of disabilities, so many types of conditions that may impact someone, and for each position it might impact their work in a different way. So, so

VANNOY:

Let’s, let’s start at the front end of it and let’s, so in the communication of the disability, or the request for a combination. So if an employee has some stress anxiety disorder that is not visible, you obviously hired this person cuz you think they’re capable of doing the job, and then they come to you, Hey, can we have a talk? They talk about this you’re not probing for any proprietary unnecessary discrim potentially discriminatory information. Nothing, hipaa, there’s, there’s, there’s no violation there if the employee’s coming to you. But what if you as the employer suspect there’s an issue? Can you, so, so I, I guess I wanna carve this up in a few buckets on the identification and communication of the problem. And I wanna separate that from the accommodations that we provide. So what is the, what is the employer’s boundaries and responsibilities when it comes to proactively reaching out to the employee to talk about disabilities or perceived disabilities? Right,

SHENKER:

Right. So, it’s a great question, and I think I’m gonna jump one step back and then I’ll, I’ll answer your question, but I, I think it all starts with, you know, having, you know, the appropriate policies and written policies and practices in place, right? So you know, it all starts with making sure, you know, you, your company has, you know, a consistent streamlined process for handling accommodation, right? There should be, you know, someone, maybe even more than one person, you know, multiple people who a, you know, accommodation request should be directed to an employee, should you know, where, where to go and, you know, be given an outline of what the process will look like. I, I think, you know, that that’s the number one thing, because we want, you know, employees to be, feel comfortable to come forward as opposed to this situation. You, you, you, you, you mentioned where maybe they’re not coming forward and we need to you know, identify what we can do. And so I,

VANNOY:

So the flip line there is have an employee handbook, have a written policy that outlines for people that you include as part of your onboarding and training process that lays out, Hey, if you have a disability or have a request for an accommodation, this is the process to follow. Am I saying that? Right?

SHENKER:

Exactly. Exactly. And I think, you know, sometimes I see businesses get too focused on that procedure and the formality of it. And, you know, again, even though you have a procedure, you know, an employee who makes, you know, an off the cuff comment to their supervisor about, you know, some reason they’re unable to do the work, which, you know, relates to a disability, you know, that may be sufficient to trigger the company’s obligations as well. So I know in almost every area we say, you know, manager training is important, but th this is one too, because, you know, employees might not just mention things to, you know, hr, it might be something said to a manager. And so, you know, that’s why, you know, a simple conversation on the floor with a laborer could be something that triggers the, you know, interactive process. So, you know, again, what is, yep,

VANNOY:

I know, I know supervisors and employers, they’re, they’re, they’re scared to death to do something wrong. And I feel like sometimes in today’s litigious society are afraid to have what may, may have historically just been a good human conversation, Hey, I see you’re struggling with such and such. At least it appears to me you’re struggling with such and such. Is, is there, is everything okay? Is there anything we can do to, to make things easier? I think people might be afraid of that conversation. Is that a, is that a good conversation to have? Is it risky? Litigiously? What, what advice would you give to employers here?

SHENKER:

No. So I, I would say that’s exactly the conversation we wanna have that, you know, if, you know, if you see an employee who’s struggling with, you know, some aspect of their job, and you know, whether or not you know, you, you believe that there’s a potential, you know, medical condition or disability that’s, you know, impacting them, right? You, you want to have that conversation about, right, what are you doing that, you know, what, what’s the performance issue that that’s identify that, and then, right. We don’t need to ask about a disability, but say, you know, is there anything we can do to help you? You know, what, you know, why, why are we having problems with this aspect of your job? And, you know, what can I do to, to help you? So, sometimes a simple question like that, that then the employee will disclose it, you know, but it’s just having that open-mindedness you know, to, to find out what the, what the issue is for the employee.

VANNOY:

And I think my guidance for small business owners is this is how we should probably be thinking about all performance management conversations anyway, right? If, if, if an employee is struggling, employee A is struggling compared to employee B in a, in a certain area, if you think it’s, if you make the assumption it’s because they’re a bad person, they’re lazy, they’re whatever, and you’re assigning a tent in intent upon them without talking to them well, maybe they’re lazy. Maybe that’s why the reason they stink at that, at that job. But maybe there’s something going on that you don’t know in the adversarial relationship you just created with that employee by accusing of being lazy. Boy, you’re setting yourself up here. If there’s actually a discrimin potentially discriminatory reason for that performance that’s related to disability, like maybe colorblindness, maybe you had no idea if they were colorblind and they were having a hard time re reading labels. So they’re organ has hard time stacking palettes in the warehouse for for, for a certain skew. And that’s why employee A is struggling more than B. And if you create that adversarial relationship by accusing ’em being lazy or not working hard when that’s the real underlying reason, you’re, you’re at risk unnecessarily, and B, you’re not getting the job performance you want, and all you had to do is say, Hey, it looks like you’re struggling here. Is there, is everything okay? Let’s talk about this. There’s anything we can do to help,

SHENKER:

Right? Yeah, a absolutely. And, and it’s all about the, the communication. And like I said, I mean, this, the interactive process starts, you know, really once you’ve learned that an accommodation may be needed but you know, you even before that, right? I mean, you have employees, you know, talking to employees, engaging in a dialogue, you know when someone’s performing badly and whether or not there’s a disability issue, you know, having that conversation will allow the company to figure out if, if there’s a solution that will help the employee, you know, perform their job you know, satisfactorily and, you know, allow the company to retain, you know, what could be a productive employee. Yeah. you know, so yeah, definitely it’s, it’s communication and then, right, you know, in those cer circumstances where, you know, you know, there’s a disability, you know, and, and possibly a need for an accommodation, right?

That that’s when they’re, you know, the interactive dialogue requirement is, is triggered, and you’re not necessarily, you don’t have to wait for the employee to come to you to request that accommodation. If you see a need for it and you’re aware of, of this type of some type of condition, then proactively, you know, have that conversation, start the process you know, find out, you know, what’s going on. This should be really a mutual conversation when we’re having, you know, a dialogue about, you know, what can be done to, to help an employee or accommodate you know, a certain disability. Right.

VANNOY:

So Brian, so we, we kind of carved in the two buckets, right? So I think we covered, I I think we adequately covered the identification of the, the concern or the disability, right? Whether and whether it’s the employee bringing it to us, that’s the easy one scenario, or it’s something we identify we got some coaching and guidance around how to have that conversation. What about the actual accommodations themselves? First of all, can, can you give us, it sounds like such a loosey-goosey term. Can you give us a legal definition of what reasonable accommodation even means?

SHENKER:

Sure, sure. That’s, that’s a great question. So a reasonable accommodation, you know, is going to be a modification or an adjustment to either the work, you know, the workplace, the work environment that will make it possible for an individual with a disability, you know, to perform that job. And so a couple key things to remember. You know, they have to be able to perform the, you know, essential functions of their job. And again, you know, essential functions are really defined by the employer. We’ll look back to the the job description for that. And, you know, something that’s also not does not present an undue hardship to the company. You know, just that you know, a general statement on undue hardship it’s difficult to prove that. And it’s the employer’s burden to prove that some requested accommodation presents an undue hardship. You know, this could be something that the company claims is extremely costly. Or maybe, you know, because of the nature of the accommodation, it’ll impact, you know, the operations in a negative way. But, you know, with respect to an undue hardship you know, an employer should really show that it conducted an analysis you know, if it’s prepared to deny one on that basis.

VANNOY:

Brian, I suspect nobody listening to listening today thinks that they’re gonna produce create an undue hardship on their employee just in the way no one thinks they’re intentionally sexually harassing someone. Even there, though, those behaviors may in fact cross the line. So can you give some specific examples? And I think we should, I think we need to player on the fringe, right? So it seems like an unreasonable request for an employee to ask for an accommodation that would cost a million dollars to implement, like redesigning the entire building that it’s a, it’s a, it’s 150 year old historic house that it’s against code for, to even change <laugh> in the employee asked me to spend a million dollars on making something more accessible. That would seem unreasonable to me. I don’t think these are the kinds of requests that we’re talking about. What I, I, I think it’s more like, I have diabetes, I have don’t have great circulation in, in my feet. I need to stand up and move around a little bit, but I’m at a computer all day. What kind of accommodation can you gimme? Is I, I think that’s the, what we’re talking about, right?

SHENKER:

Right. Right. And yeah. You know, a great example of you know, what could be an undue hardship for certain companies would be, you know a leave of absence, right? A lengthy leave of absence. You know, again, you know, a leave of absence can be a reasonable accommodation but maybe, you know, indefinite leave where we don’t know when the employee is coming back, and therefore it prohibits the company from planning and, you know, setting up its operations as it, you know, as it would you know, that, that under the ADA may very well be, you know, an undue you know, burden on the company. So, you know, an undue hardships. So, you know, it’s a very fact intensive you know, inquiry. But you know, as an employer, you really want to document it. So, you know, if, if I have a position where they’re, you know, 10 people in this position and one of them wants a, needs a long leave of absence for disability, you know, that might be reasonable because I have nine other individuals who can collectively, you know you know, fill in the gap there.

But, you know, if I have a, you know, one-off employer, you know, maybe it’s, you know, they’re only two of these high level individuals and it’s a, it’s a long term leave of absence, you know, that could present an undue hardship to the company. So it, it’s, you know, the same accommodation for two different employees you know, in different positions, you know, could be, you know reasonable for one, but not for another.

VANNOY:

Right? Right.

SHENKER:

And a lot of it’s about, you know, documenting that right. For an employer. You know, the, you know, one of the key things is, you know, documenting the interactive process, because, you know, the employee might ask for an accommodation that, you know, you feel the company feels is, you know presents a hardship or maybe the company believes there’s, you know, a simpler solution. And so that’s why it’s part of a dialogue, and you want to document, you know, what the employee asks for, what the response was, and you know, what the company might propose. You know, all, sometimes these are done via email, easy enough that’s documented. But you know, the, this process of discussing accommodations if done verbally you know, follow up with a, a written email just confirming what was discussed you know, this is something in, in litigation, I can tell you if I had clients who documented those conversations, it, it would save, you know, a lot of you know litigation and costs, you know, down the road.

VANNOY:

You know, I’m wondering if you could give some more of the really no-brainer accommodation request. I, I, I’ll, I’ll, I’ll give one. I know at a sure, you know, if it’s the, if it’s the use case I shared earlier, somebody has diabetes course circulation, the feet, they need to, but they’re at a computer all day. We don’t even blink at, at accounting people with a standup desk. The kind, you know, you can lift up, and so you can work at your computer standing up and alternate sitting down the, the few hundred dollars that, those things a good one costs absolute no-brainer for the removal of risk that you’re not making a proper accommodation, the health benefits that come with it and for having a more healthy, engaged employee. And if you’re self-insured, you know, healthy employees or their actual cost savings.

And then three, just employee satisfaction. Oh, you know, my employer, they care about me, right? They, I, I told ’em I had this concern, and, and they bought that for me. I think in the past, I have this black and white picture in my head with a sea of desks and various gender specific roles around a secretarial pool all typing away where accommodations would’ve been laughed at that. And that, that’s not the world we live in today. We sh we should be thinking about how do we accommodate our employees reasonably cost effectively to engage them adhere them to our corporate employment brand, make them as productive as possible, all at the same time? Has the benefit of reducing risk? Can, can you give some more examples, one or two of these really easy no-brainer accommodations that we should be making,

SHENKER:

Right? Yeah. So I, I think, you know, assistive devices, like you mentioned, you know, a, a, a chair, you know, a a a table that goes up and down so you can stand or you know, for someone who you know, doesn’t, you know, has issues with hearing or speaking, you know, their, you know, interpreters or you know, I’ve had clients use you know, their, their apps, right? Their apps that can be used to help people with hearing issues. So, you know, tho those are things that, that can be used you know, modified schedules you know, so very often, you know, that’s something that can be a reasonable accommodation. You know, we’re, we’re not creating new positions, but, you know, sometimes there’s you know, a vacant position, an open position that someone could fill and that could be an accommodation instead of keeping them in their current role.

And, you know, just, you know, anything that makes the workplace, you know, more, more readily accessible. Yeah. So yeah, I, I think those are all, you know, good you know, examples, but again, it, it’s very fact specific. So you know, as an employer, you know, you can offer things that, you know, the employee might propose something that, that might not be so realistic. And you know, that, that’s why it’s an interactive process. So you can figure out, you know, what will allow that employee to fulfill the functions of that job while being accommodated.

VANNOY:

Brian, lemme see if I can kind of put a cap on this, on this topic, and we’ll, we’ll move on to our, to our next subject. So, if you’re an employer over 15 employees, or you’re gonna be over 15 employees at some point in time you must comply. This is, that’s, that’s black and white. So the Americans with Disabilities Act applies to you, and it’s not just for your customers and access to your storefront or your bathrooms. This is making sure you don’t intentionally or unintentionally discriminate based on someone’s disability. And so it’s starts with communication. Communication is the most important thing you can do, is, so if the employee does not come to you with their concerns saying, Hey, they’re probably, they might not use the word, I have a disability, and here it is, that might be, Hey, I struggle with such and such.

And, and then it’s an open dialogue, and it’s our it’s our legal responsibility as employers to make reasonable accommodations for those things, whether it’s a hearing disability, a site disability some physical challenge that they have with strength or coordination or circulation of the bloodstream or anxiety or whatever, whatever the case may be. And I think almost defini definitionally, these things are very nuanced. There are plenty of really black and white cases, but a lot of this stuff is nuanced. And because it’s nuanced, the most important thing you can do is an employer is to over-communicate and document these communications for the accommodations you’re gonna make with the employees. Am I summing that up correctly, or do you think I’m missing any big components? Yeah,

SHENKER:

No, I think that’s absolutely right. And I’ll, I’ll just add, you know, one point which I think is often, you know, overlooked by employers is that, you know, the, the process doesn’t end when you, you know, reasonably accommodate an employee. You know, after an accommodation is provided, you know, there should be subsequent follow up to ensure that the accommodation is helping the employees working for the employee. And, but on the other hand, you should follow up with the supervisor or manager to make sure that you know, that accommodation is effective and that it’s allowing the employee to perform, you know, the functions of the job and not having a you know, a negative result in terms of your operations. So I think, you know, that interactive process continues even after, you know, an accommodation is done, you know, granted or denied because you wanna make sure that, that it remains effective, you know, for the employee.

VANNOY:

Right. hey, one last thing I wanted to touch on. I, and I forgot, in this part of our conversation, we talked about identification of the issues and communication and accommodations for the employees in which employers must comply. But what about pre-employment? Cuz the law says the, it’s not just about intentionally discrimination, you can’t even unintentionally discriminate, and that includes perspective employees. What, what guidance, this, this is a whole webinar in of itself, but what guidance would you give around, give employers for thi how to think about how to not, how to avoid unintentional discrimination, right? In the, in the application process?

SHENKER:

Yeah, so great point. And, and I think the application process, you know, we, we can divide it into maybe two categories, right? The, the pre-offer stage and the post offer stage. So you know, employers are, you know, much more limited in what they can offer at that, you know, pre-offer stage when someone’s just applying. You know, again, you know, th there’s some basics here, right? That, that should be somewhat obvious. But, you know, don’t ask questions about a dis a disability, right? If, if someone walks in and, and you see ’em in a leg brace or crutches you know, don’t ask that. You know, you, you interview ’em, but don’t ask, you don’t need to ask them about that interview about that, that, sorry, that disability. And during the interview you know, you, you know, don’t ask, you know, general questions about disabilities that are trying to get some information.

Like, you know, whether do you have any disabilities that would prevent you from performing this job? You know, more so ask job related questions such as, you know, can you carry, you know, a 40 pound crate with or without an accommodation where they can answer that without disclosing you know, a disability? You know, so again, you know, at the, you know, pre-job offer stage, we’re really asking things that are about the job that are job related. And so, again, you know, that’s why I think job descriptions and accurate and updated job descriptions are very important because there, there might be some aspects of a job you, you want, you want to ask about. But again, you know, should you know, a legal assistant, you know, should they be asked, you know, can you walk up and down stairs?

Can you carry 30 pounds? You know, they might never be required to do that. So we want to make sure that our, you know, job descriptions that we’re interviewing for, you know, are accurate and that, you know, when we’re asking things about them, it is in fact, you know, job related. And then look, when, when we’re at the post offer, offer stage, when an offer of employment has been made you know, then, then a little more right? Than, you know, at that stage, even early on, right? If an employee mentions something that could trigger the, the accommodation discussion, you know, that’s it. It might start before they’ve actually begun employment or, you know, set forth in your building, right? If they’ve mentioned something, we need to start that that that process. You know, of course there, there are a few, you know, I can give you a few interview questions that would, you know, be, you know, bad ones to ask such as, you know how many, how many sick days did you take for your previous employer? Or you know, have you been injured on the job before? Or, you know, you’re in good health. You know, those are things we wanna stay away from a, again, we really just wanna ask job related issues and, you know, not get at whether there’s a disability or issue through seemingly, you know you know, benign questions. So that, that’s really the idea of what to do and not to do at that that pre-hiring stage.

VANNOY:

You know, what it, it’s good compliance to the law requires good management practices, right? And so if yes, if you have a candidate with coming in with crutches, there’s obviously something physical going on. You know, you can’t say, Hey, you got crutches. Are you sure you’re up to this job that you’re instantly in, in, in, in terrible position, right? But it forces you to have planned out and written a good job description, understand the actual requirements of the job. So therefore, a question like this job requires the, the ability to lift and carry four up to 40 pounds above the waist for for 100 feet at a time. Is that something you’re able to do? Right? Am I thinking about it right, Brian, that the, the prior is a horrible question. The latter is a perfectly reasonable question,

SHENKER:

Right? Right. Cuz you’re getting towards what, what the job is about, not about some characteristic of this person or condition of this person, right?

VANNOY:

Exactly. And, and the, so the right approach is harder because it requires more planning. You’re gonna have to have job descriptions actually written. You’re gonna have to have handbooks actually written. They’re gonna be, have to be more well thought out, but it saves you in the long run and it re and, and it results in a more productive workforce. So, okay. We covered pre-employment. We covered employment. Let’s move on to a topic that I, I think a lot of people just have no idea is even a legal responsibility. And, and that’s the website. What, what can you tell employers about their legal obligation to have an ADA compliant website?

SHENKER:

Sure. So there, there’s a lot to unpack here. I I’ll just start out with blanket statement that if this is not something you’ve looked into, look into it, because this is actually the where the, we we’re seeing the greatest amount of litigation right now in terms of the ADA. So, I mean, look, when, when the ADA was created in, you know, the early nineties you know, I think the internet existed, but nowhere near like it does today. And so, you know, title, title three of, you know, the ADA doesn’t really say anything about, you know, the, the internet and company websites and whether they’re places of public accommodation, but you know, what we can speak to is what the current legal landscape says. And there has been department of Justice guidance just this year on website accessibility.

And, you know, we’ve seen a lot come down in terms of litigation and what the courts say. So obviously, what, what’s the problem, right? We have a lot of people in the US who, you know, have hearing or visual impairments that affect their ability to use, communicate with websites or otherwise, you know, use the internet. So you know, what we’re looking at here is, you know, typically the allegations in a website accessibility case are that a private company qualifies as a public a place of public accommodation. And that the website has barriers that deny that that individual the right of equal access. So these are being, that filed thousands and thousands of these each year. You know, they are, are really shooting up in, in, in terms of you know, the, the level of litigation. So right now, there, there’s actually, you know, a split in terms of the, the federal courts on what they say about these.

So there are few circuit courts the first, fourth and seventh circuits that have found that public web, that websites can be a place of a public accommodation. And therefore, you know, there are requirements you need to remove barriers, we’ll discuss what those may be. And then there’s some other circuits that have concluded they’re not actual places of public accommodation that, you know, public accommodation places must be a physical place. That there’s a, you know, I could tell you about the 11th circuit down in Florida. I mean, they, that’s that federal court has, you know, kind of gone back and forth on this. It’s almost like a you know, a legal soap op, I’d say. But you know, they, you know, they have determined and then gone back as to whether, you know, websites need to be sub websites are subject to the ADA’s requirements.

But what I’ll really focus on now, you know, that’s the, you know, there, we don’t know, but you know, that that’s the best I can say that. Look at your, your specific jurisdiction. But the Department of Justice just a few months ago, you know, issued some really important and potentially helpful guidance, still leaves some questions open but, you know, they, they issued guidance on how, you know, we should look at websites and accommodations. So basically, you know, the, the DOJ address, you know, so several areas that, that websites have issues in, you know, accessibility you know, poor color contrast use of colors to give info alone and not words lack of captioning for deaf or hearing disabled individuals inaccessible online forms, you know different ways to navigate instead of just a mouse. These are all things that could, you know, potentially, you know, prohibit certain people from using your company’s website.

So, you know, the DOJ has given us you know, some things to consider. So I’ll, I’ll go through some of, you know, I think what are the best practices for website compliance? Because, you know, given the split and, you know, the courts and that, you know, their Congress hasn’t enacted to, you know, put through regulation. You know, we’re really looking at this d j guidance. So, you know, my, my first, you know, recommendation here would be, you know, whenever you are you know, building a new website or redesigning one, you know, accessibility should be part of the planning and the design, right? Yeah. So there, there’s something called the W C A G. I, I’m, I’m blanking on what it actually stands for, but it, it, it’s a, there, there are way, you know, there are, it, it basically talks about, you know, compliance for websites.

So the first would be, you know, talk to your website designer, tell them you want it, W C A G compliant. I, I think we’re at W C A G 2.0. And so there’s certain things that means that it should be perceivable, it should be operable, understandable, and robust. Again, I’m those, you know, website specialist, but, you know, what does this generally mean, right? That your, your website, you know, should be, you know, perceivable, right? It shouldn’t be invisible to some part of someone’s senses. Operable means that even if someone’s disabled, they should be able to operate your website. You know, the, the interface shouldn’t require an interaction that someone who’s deaf or, you know, blind, you know, can’t do. It should be understandable in that, you know, it should be simple enough that someone trying to use it should understand you know, how to operate, you know, the, the user interface of the website. And, and robust means, you know, as technologies advance, you’re, these accessibility portions are advancing with it, right? That you just don’t have this old, you know, 2000 website for people with, you know, accessibility issues while you’ve, you know, advanced the rest of your website much farther. So, so those are some things to consider. But

VANNOY:

One of the things I think, so couple, couple thoughts I have on this is I think our guidance for employers would be increasingly, your website, it, it, it’s, let’s go back 20 years. Your website was probably some digital sales collateral, right? So maybe aADA interpretations had not advanced that far. And for, forgive me for taking a shot at your industry, Brian, maybe the ambulance chasers hadn’t jumped on board finding ways to sue over non ADA compliant websites. But I think it’s safe to say early websites were ugly. They were text only maybe as few basic images. And it was sales collateral, it was marketing materials. Today, the website for a company is in fact your storefront. And if your storefront has to be wheelchair accessible and, and wheelchair accessible bathrooms, and be an ADA compliant lobby to enter your place of business, that’s what your website is increasingly over time.

So, I think employers need to be, need to think about their websites as that it is the, it is the store, it is the lobby of your business, right? And so things like, well, gosh, what’s wrong with a bunch of images that makes my website look beautiful? Well, I’m getting wonky here as a marketing guy, but if you have, if you are, if a person with a a a vision disability has a plugin in their web browser that reads text and speaks text, so it’s text to audio they listen to your website, they don’t read cuz they can’t read, they can’t see the text. But if all you have is images without alt text, it’s called describing what that image is, they can’t interpret and consume your website. So this gets really complex, really, really, really fast. But to me, the, the guidance here is for employers is especially if you’re a small employer, you’re 15 and a half employees, right? You might not have the deep pockets to go build the 30 or 50,000 WCG compliant website. But use some common sense and think about your website as a storefront that you must make com ADA compliant just as you do a brick and mortar

SHENKER:

Business. Yeah,

AB absolutely so important because, you know, and I, I may have even, I want to up play this more cuz I don’t think it, you know, these, there are plaintiffs firms and plaintiffs out there who are just going through websites. I don’t, maybe they’re going through a phone book, I, you know, but they are just picking businesses going to the website whether there’s a true intention to use that company’s services or not. And they, are I actually trying to use it? And then they’re gonna note the deficiencies in the website. Or there are testers, there are tester plaintiffs who are doing this for a living and they are filing, you know, dozens of lawsuits a week or a month and, you know, they’re, you know, obtaining, you know, quick settlements, injunctive relief as to all this stuff. And so, you know, this is not just, you know, people coming to your business who you know, you will know.

You may know if an an individual comes to your business and you know, encounters a physical barrier and, and raises that, right? That might be something you’re aware of. This is, these are people you’ve never dealt with and they can go file a a lawsuit because they’ve gone to your website. So look for companies and businesses that either don’t want to or don’t have the resources, again, that’s understandable. But you know, consider the latest litigation developments in your jurisdiction because there is very possibly, you know, exposure you know, given this very active plaintiff’s bar. So there might be, you know, it might be worthwhile to just consider making accessible some portions of the website, right? Maybe just the most heavily trafficked pages, the landing pages because again, there isn’t guidance right now as to whether a company’s whole website needs to be you know, accessible and compliant with the, the W C A G, you know standards. So, you know, companies, even if you’re proactively you know, complying, you know, maybe you wanna just first focus on those more heavily trafficked pages and the parts that are tied towards, you know, your public accommodation or your, you know, and selling of goods and, and then focus on those lesser used pages after that. You know, but no, no matter what steps. Yep. Go ahead.

VANNOY:

What, what, what, what, what guidance do you give employers for, cuz increasingly, the web, a website, I mean, I think we’re talking here in the context of a public facing external website, but increasingly an intranet, aka a website for employees is, is a substantial part of the job. So, if you’re an employee atsu, I mean, you’re in, you’re in email and you’re in Teams chat, but you’re in SharePoint, which is a website, you’re in the intranet looking, getting forms, and how do I request time off? What, what are our vacation policies? It’s all in the intranet. It’s, it’s a website internal. What, what guidance do you give employers for internal facing websites?

SHENKER:

Yeah. V very much the, these same things that Right. Consider a you know, a deaf employee that you have, are, are they going to be able to, you know, go in and take that training off your intranet or, you know, are they, you know, someone you know, who has a, a vision, you know, disability? Are they going to be able to, you know, find, you know what they need and fill out a form? So yeah, I, these very same considerations should be thought about for, you know, a company’s, you know, internal website. Because a again, you know, that those issues might very well come up, you know, under, you know, title one, the employment portion, but it would be just as pertinent as the, you know, what a reasonable accommodation is. And look, you know, if you have, you know, for instance, deaf employees or, or, you know, you know, there are lots of things you need to do, you know, even you know, something that’s, you know, announced in at a meeting, right? Do you need an interpreter there? So, you know, the, the same thing, you know, applies for what’s gonna be conveyed to employees you know, over, over an intranet. Certainly.

VANNOY:

Yeah. Hey, Brian, we’re we’re about at time. Let’s let, last topic I wanted to hit here and, and let’s just spend two minutes on it if we could. We don’t wanna scare the heck outta everybody here, but we want everybody to understand what the real life consequences can be. Speak to, to fines for non-compliance. Maybe first, what is, who’s the regulatory body that manages this stuff in, in, where do consequences happen? Is it, you know, like I know it’s Department of Labor doing a wage and hour audit, that’s not how this plays out. This, this commonly plays out in the courts as a form of a lawsuit,

SHENKER:

Right? Right. So, you know, started, we were talking about public accommodations under Title three. So that’s, let’s start with that, that then we can get into the employment. But so for public accommodations, so like we said, it could be private enforcement, there could be you know, a potential customer, a customer who files a, a lawsuit through their attorney, and, you know, they can obtain you know, injunctive relief such as, you know, a, a a, you know, an order that, you know, the company bring its website up to W C A G compliance standards, right? That might be something that’s ordered by a court. They can obtain attorney’s fees, which is where they leverage their settlements in these cases. Because if you litigate over a website compliance case, you know it’s gonna be costly, and then you’re building up attorney’s fees on the other side that you may very well pay at the end of the case.

And so, you know, those private you know, actions are, are a problem. But then look, the, the Department of Justice they’re the, the enforcement arm here and the Civil Rights Division can assess civil money damages for ADA violations up to 75,000 for a first violation and 150,000 for subsequent violations. So, you know, these, this is not, you know, small change we’re dealing with. You know, in, in some instances attorney generals can bring cases you know, in, in, you know in situations of, you know, public interest you know, alleging pattern practice discrimination. So there are lots of ways you can, you know, get get hit with one of these and look, and then simple, the simple area, right? The employment context, which is similar to other, you know, title seven areas, is look, you know, there’s regular damages for discriminating against an individual or failing to accommodate you know, front and back pay right?

That, that, you know, gives them damages for for suffering actual economic damages if they, you know, lost their job, for example, emotional distress and also, you know, punitive damages where, you know, the, the conduct was, you know, malicious and intentional. Now, under the ADA, these damages are capped depending on the size of the employer with, you know you know, 15 to a hundred employees. You’re capped at, you know, 50,000 in punitives in emotional distress, all the way up to, you know, companies with 500 plus employees are capped at 300,000. But again, beware, you know, that there may be, you know, other damages as well. So lots of reasons, lots of reasons to come into compliance here.

VANNOY:

Brian, am, am I oversimplifying to say lots of money at least up to $50,000 fines for doing it wrong if a regulatory body comes in and specs and says you’re doing it wrong. But the real risk is the cost to defend a lawsuit whether it’s frivolous or not. And if it’s not frivolous, the actual payouts of lawsuits, that’s, that’s where probably the most expense, potential expense and risk sits for employers. Is that, is that accurate?

SHENKER:

Exactly. And look, typically the cost of compliance or substantial compliance is much less than, than those litigation costs.

VANNOY:

Absolutely. Always, always, always. All right, Brian? I, I, I, I think we’re at, at time here as always. This is just so complex. I, I, I feel like, you know, in past decades, the big laws don’t discriminate based on race, age religion, gender these are easy things. Super black and white, easy to, easy to follow. Increasingly, things like ADA is pretty nuanced in and of itself. And then you enter in the state’s versions of their own ADA laws. The stuff I, I, I think it was clear today, Brian does this for a living, and this is, it, it feels like to me almost everything is an edge case. It, it’s just really, really nuanced. And so I think the most important thing you can do is have great policies and procedures in place handbooks, job descriptions.

Most small employers can’t do it. They don’t have a sure certified person on staff that can’t afford the 90 to $110,000 that would cost to hire that person. And you don’t have the expertise without it. So this is exactly what we do, is we count beyond providing payroll and HR and time to 10 software and tax filing services for employers. We provide these outsourced human resource services. We’ll meet you where you’re at, whether you just need a little bit of help or a lot of help with our HR support for managers, strategic HR support for managers, or total HR for your entire workforce where we truly become your outsourced hr function. All of this in an absolute fraction of the cost of trying to hire in-house staff. So if you’re interested please reach out to us after this webinar. We’d love to talk to you. Brian, is there, I’ll give you 20 seconds to talk about Jackson Lewis and how you guys help companies.

SHENKER:

Sure, sure. Of course. And so we’re a nationwide employment defense firm. We, we represent and I help companies in all parts of the employment relationship. And, you know, certainly whether it’s guiding companies on legal issues with respect to disability and accommodations or website compliance, or, you know, lit, unfortunately, you know, litigating a matter and defending it. You know, we are, we are there to help employers.

VANNOY:

Alright, Brian, as always, enjoy our conversations and everyone else. If there’s anything we can do to help grow your business by getting the most out of your human capital and staying compliant in the process, we’d love to talk. Until next week, Brian, thank you. Talk to you again sometime in the near future, I’m sure, and we’ll talk to everybody else next week.

SHENKER:

Thanks a lot.

Speaker 3:

So,