DGRead 21.12.15

A Teaspoon of Medicine Helps the Medicine Go Down; Rocket Docket Update; Jury Slams Walmart for $125 Million; Nina Ginsberg Wins Another Lawyer of the Year Award; Happy Holidays

DGRead 21.12.01

COVID-19 and Navigating the New Normal Workplace; Wither OSHA’s Vaccination/Testing Mandate?; Does the ADA Apply to Cyberspace?; As Virginia Turns Red, Changes Are in Store; Thankful

Does the ADA Apply to Cyberspace?

Title III of the Americans with Disabilities Act (“ADA”) requires all public accommodations and commercial facilities to be accessible to the disabled.  The scope of the ADA accessibility requirements extends from office buildings and manufacturing facilities to movie theaters, retail stores, and restaurants.  But what about cyberspace?

In a precedent setting ruling, the Eleventh Circuit Court of Appeals in Gil v. Winn-Dixie Stores, Inc., held that Title III does not apply to a business website irrespective of whether the business also has a physical location.  The case involved a grocery store chain, which operated a website for the convenience of its customers, but did not offer any sales through the site.  A long-term customer of the grocery store, who was legally blind and used screen reader software, filed a Title III action against the grocery store chain claiming that his inability to access the website with his screen reader software prevented him from filling his pharmacy prescriptions online.  Although the plaintiff prevailed before the district court, the Eleventh Circuit reversed, concluding that under Title III’s plain language, “public accommodations are limited to actual, physical spaces.”

Additional developing issues under the ADA include court decisions addressing when must a business accommodate a disabled individual’s service animal, what constitutes readily achievable barrier removal, and must businesses offer gift cards in Braille for customers with sight impairments?

A discussion of these and other Title III developments are included in DiMuroGinsberg partner, Jonathan R. Mook’s November, 2021 update to his treatise, “ADA: Public Accommodations and Commercial Facilities,” which is published by LEXIS Publishing.  If you would like a summary of the recent developments highlighted in Jonathan’s update, “Americans with Disabilities Act Title III Update,” please contact Jonathan at jmook@dimuro.com.



As Virginia Turns Red, Changes Are in Store

By: M. Jarrad Wright

Virginia’s recent governor and House of Delegates elections produced a significant victory for the Republican party as Governor-Elect Glenn Youngkin defeated former Governor Terry McAuliffe.  Equally important, Republicans are poised to regain control of the Virginia House of Delegates by a two-seat margin.  Those races recently were certified for the Republican candidates, but the fat lady still has not sung, as two Democratic Virginia delegates have requested recounts in their districts.

While that process is underway, divided government will be the norm in 2022 as the Democrats have a small majority in the State Senate, which was not up for election this year.  With the dust settling, the question for Virginia businesses, employees, and citizens is what happens next?

Uncertain Consequences

Elections have consequences.  At this moment, however, no one knows exactly what those consequences will be.  With divided government, lawmakers are going to have to work across party lines to push forward any legislation.  This could have a significant impact on the workings of next year’s General Assembly session.

For example, Virginia’s new law allowing for the sale of recreational marijuana which was enacted this year includes a clause requiring a second vote in the General Assembly in 2022 for the regulatory requirements to be put into effect.  While this vote would not roll back the legalization of marijuana, the task of finalizing the regulatory framework for sales will be left to the next year’s General Assembly.  It still is early, but news reports indicate that some Republican house members do not want to derail marijuana sales.  Rather, those members want to speed up sales that are currently scheduled to begin in January 2024 to tamper down illegal sales of pot.

That said, it is unknown that changes to the regulatory structure will occur, especially considering that current Attorney General Mark Herring was working to setup the Virginia Cannabis Control Authority.  That job will now fall to a new Attorney General, Republican Jason Miyares, with input from the newly constituted General Assembly.  All of this simply heightens the uncertainty as to whether and when Virginians can expect to legally purchase marijuana for recreational use – with all the attendant issues for employers in attempting to maintain a drug free workplace.

Revisiting Employment and Business Laws?

Immediately following the elections, Republican leaders stated that their top priorities involved schools, and they did not give specifics as to which business and employment related laws that they intend to alter.  Under the prior Democratic control of state government, Virginia dramatically changed its employment law and business statutes making them employee friendly.  For example, the applicability of covenants not to compete recently was reduced by prohibiting lower paid employees from being subject to restrictions on subsequent employment.  This, and many other recent changes to the law are likely to be revisited in the next year, assuming that Republicans maintain control of the House following the recounts and can find sufficient Democratic senators to cross the aisle.

Bottom Line

Given the present state of flux in the General Assembly, Virginia employers need to be attuned to developments in the 2022 legislative session, which begins in mid-January.  Also, now is the time to contact your state representative or senator to make your views known as to proposed changes in the law that would return Virginia to a more business friendly environment.  Time is of the essence.  Don’t wait until the General Assembly convenes on January 12, 2022.


Wither OSHA’s Vaccination/Testing Mandate?

In our November 15th issue, we addressed the COVID-19 vaccination or testing mandate in the Emergency Temporary Standard (ETS) of the U.S. Occupational Safety and Health Administration (OSHA).  In brief, the ETS requires all covered employers of 100 or more employees to ensure that all their unvaccinated employees wear masks by December 5, 2021 and that by January 4, 2022, all employees are either fully vaccinated for COVID-19 or submit to weekly COVID-19 testing.

Mandate on Hold

Recently, the Fifth Circuit Court of Appeals, based in New Orleans, issued a preliminary injunction barring OSHA from implementing its mandate.  As a result of the court order, OSHA has suspended all activities relating to the implementation and enforcement of its ETS pending further legal developments.  Litigation over the legality of the mandate will continue in the Sixth Circuit Court of Appeals, based in Cincinnati, where challenges from across the country to OSHA’s ETS have been consolidated.

The litigation in the Sixth Circuit (and possibly the Supreme Court) will take some time before a definitive result is obtained.  Accordingly, OSHA’s suspension may well mean that employers covered by the ETS have a reprieve of the upcoming December 5, 2021 deadline for implementing masking requirements and the January 5, 2022 deadline for employees to be fully vaccinated or submit to testing.  Nonetheless, any reprieve is not guaranteed.

Employer Options

Given this legal uncertainty, there is no one size fits all approach for employers to take in response to OSHA’s vaccination/testing mandate.  Some employers may decide to follow a more risky course and delay moving forward with a mandatory masking and vaccination/testing policy until there is a definitive court ruling.  Other employers may decide to still move forward with implementing the masking and vaccination/testing requirements, especially if they believe it is in the best interests of the organization to do so.  Accordingly, at this juncture, employers are well advised to consult with experienced employment counsel to discuss their individual situation in order to determine how best to proceed.

If you would like to obtain a copy of the Fifth Circuit’s opinion preventing OSHA from enforcing its mandate, or have any questions about how to proceed given the shifting legal landscape, please contact DiMuroGinsberg partner, Jonathan R. Mook at jmook@dimuro.com.

DGRead 21.11.15

Stay Up-to-Date on the Latest ADA Developments; Let’s Talk Vaccination Exemptions; OSHA Issues Employer Vaccination/Testing Mandate; Honoring Our Veterans

DGRead 21.11.01

Virus ADA Ruling May Prove To Be Double-Edged Sword; The Government is Helping Workers!; Sharing is Good!

Virus ADA Ruling May Prove To Be Double-Edged Sword

By: Jonathan R. Mook

Questions concerning the intersection of COVID-19 and the protections of the Americans with Disabilities Act — not least of which is the basic question of whether infection with the COVID-19 virus constitutes a disability covered by the statute — continue to play out in the courts.

The answer to that question will govern the degree to which employers will need to take into account the nondiscrimination and reasonable accommodation requirements of the statute in dealing with the continued impact of COVID-19 in the workplace.

On Sept. 16, the U.S. District Court for the Eastern District of Pennsylvania addressed the question in Matias v. Terrapin House, allowing a fired worker’s COVID-19-related disability claim to proceed.

In doing so, the court held that the plaintiff’s complaint sufficiently alleged that her former employer regarded her as disabled due to her testing positive for COVID-19.

While the court reached the correct result, practitioners should bear in mind that in addressing the elements of a “regarded as” disability claim, the court relied upon outdated case law to consider a factor that Congress eliminated in 2008 and that no longer needs to be established.

COVID-19 and the Definition of Disability
In considering the degree to which the ADA may provide legal protections to persons infected with COVID-19, it is helpful to bear in mind that the statute incorporates a three pronged definition of “disability”:

  • “A physical or mental impairment that substantially limits one or more major life activities” — the actual disability prong;
  • “A record of such an impairment” — the record of a disability prong; or
  • “Being regarded as having such an impairment” — the regarded-as disability prong.[1]

So far, court decisions indicate that being infected with the COVID-19 virus, in and of itself, is not an actual disability under the statute because it does not substantially limit a major life activity.[2]

For example, on May 10, in Champion v. Mannington Mills Inc., the U.S. District Court for the Middle District of Georgia addressed an ADA suit brought by an employee who claimed Jonathan Mook that she lost her job because of her association with her brother, who worked at the same Mannington facility. Her brother had tested positive for COVID-19 and missed several days of work when he was required to quarantine.

In dismissing the lawsuit, the court found that the plaintiff’s brother was not disabled because missing work and being unable to maintain in-person communication while subject to quarantine did not rise to the level of substantially limiting any major life activity.[3]

Therefore, her claim for association discrimination could not stand. However, the rise in the number of individuals suffering from the lingering long-term health effects of the COVID-19 virus, so-called long-haul COVID-19, may change the calculus.

It is becoming increasingly likely that courts will recognize that having severe long-haul COVID-19 can result in a substantial limitation of a person’s major life activities.

Indeed, President Joe Biden has indicated that may well be the case when, in a recent speech on the 31st anniversary of the signing of the ADA, he stated that many Americans who seemingly recover from the virus still face lingering challenges like breathing problems, brain fog, chronic pain, and fatigue. These conditions can
sometimes … rise to the level of a disability.[4]

In guidance issued on Sept. 9, the U.S. Equal Employment Opportunity Commission echoed the president’s remarks by recognizing that long COVID-19 may constitute an ADA disability.[5]

Importance of Regarded-As-Disabled Prong
Importantly, demonstrating that COVID-19 substantially limits a major life activity and, hence, constitutes an actual disability under the ADA is not the only way that persons infected with COVID-19 may come within the protections of the statute.

The actions of an employer may render persons infected with the COVID-19 virus disabled within the regarded-as prong of the definition of disability.

That is because to be regarded as disabled, there is no requirement that the employer perceive the employee’s physical or mental impairment as substantially limiting a major life activity.

All the employee needs to establish is that he or she has been subjected to an action prohibited under the act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.[6]

When the ADA was initially passed in 1990, the statute contained a more restricted definition of what constitutes a regarded-as disability. Thus, under the original statute, an employer had to perceive an individual’s physical or mental impairment as substantially limiting a major life activity.[7]

That narrow definition was changed, however, by the ADA Amendments Act of 2008, which greatly expanded the scope of coverage under the statute and, in particular, the regarded as definition of disability.[8]

Thus, at the present time, where an employer takes an adverse job action against an employee due to an actual or perceived impairment, such as COVID-19, the employee will come within the regarded-as definition of disabled, unless the employer can demonstrate that the impairment is both transitory and minor.[9]

And, the employer must make this showing on an objective, not subjective, basis.[10]

Matias v. Terrapin House
How a regarded-as COVID-19 disability claim may arise can be seen in the Eastern District of Pennsylvania’s recent decision in Matias v. Terrapin House.[11]

The case was brought against Terrapin House, a residential facility for individuals with autism, by a former direct support professional, Ninoshka Matias, who claimed that she was terminated after informing Terrapin of her positive COVID-19 test results.[12]

In her suit, Matias claimed that Terrapin’s decision to terminate her was motivated by her request for COVID-19 leave, which Matias argued constituted disability discrimination.

In moving to dismiss Matias’ lawsuit, Terrapin argued, in part, that she had failed to sufficiently allege a claim for regarded-as disability discrimination because the purported disability — infection with COVID-19 — was transitory and minor.

U.S. District Judge Joseph F. Leeson Jr., however, disagreed and allowed Matias’ ADA claim for regarded-as disability discrimination to proceed.

In analyzing whether Terrapin regarded Matias as disabled, Judge Leeson looked to guidance from the U.S. Department of Health and Human Services and the U.S. Department of Justice that COVID-19 “is a physiological condition affecting one or more body systems,” and, accordingly, may be a “physical or mental impairment under the ADA.”[13]

In his opinion, Judge Leeson correctly cited to the ADAAA’s definition of a regarded-as disability as not depending upon “whether or not the impairment limits or is perceived to limit a major life activity.”[14]

Nonetheless, relying upon case law decided under the pre-ADAAA definition of disability, Judge Leeson went on to consider whether Terrapin believed that Matias’ impairment substantially limited a major life activity.[15]

In that regard, Judge Leeson noted that Matias’ complaint alleged that days before she was fired, she had “informed Terrapin that she felt like she was losing her senses of taste and smell.”[16]

As Judge Leeson explained, these are symptoms common to certain forms of COVID-19 that can carry longer-term impairment of major life function, and therefore, Judge Leeson concluded that “Matias … plausibly alleged that Terrapin regarded her as having an impairment that can substantially limit major life functions.”[17]

Judge Leeson further found that Matias had sufficiently alleged that Terrapin had taken an action prohibited by the statute — i.e., termination — because of Matias’ physical impairment, i.e., infection with COVID-19.

As Judge Leeson emphasized, Matias was terminated on a Sunday “immediately following her disclosure to Terrapin that same day that she was COVID-19 positive.”[18]

Accordingly, Judge Leeson reasoned that the immediate temporal proximity between Matias’ disclosure of her COVID-19 symptoms and her positive test result and her termination raises a strong inference that Terrapin regarded her as disabled.[19]

Is COVID-19 Transitory and Minor?
Having determined that Matias allegedly had been subjected to an action prohibited by the ADA due to her infection with COVID-19, the court next turned to Terrapin’s defense that Matias’ ADA claim still should be dismissed because her infection was transitory and minor.

As Judge Leeson explained, the ADA does not provide relief for an adverse employment action where the employer perceives the employee to have a disability that is objectively transitory and minor.[20]

To assess whether that was the case here, Judge Leeson assumed arguendo that Terrapin could establish that infection with COVID-19 is transitory, and thus, he focused on “whether COVID-19 is ‘minor’ as the term is contemplated in the ADAAA.”[21]

In arguing that it is, Terrapin contended that it could not have perceived Matias as having anything other than a minor condition.[22]

But Judge Leeson emphasized that “Terrapin’s subjective belief that Matias’ COVID-19 [positive test] result was minor does not carry its burden to establish the defense.”[23]

Rather, it is objective evidence that governs the analysis. In undertaking an objective analysis, Judge Leeson compared the hospitalization and mortality rates of the COVID-19 pandemic with those of the seasonal flu, which federal courts have viewed as being “quintessentially transitory and minor.”[24]

In making this comparison, Judge Leeson concluded that the seasonal flu “pale[s] in comparison to … COVID-19.”[25] Looking to studies and reports from the Centers for Disease Control and Prevention, Judge Leeson found:

Whereas an average of 422,000 people in the United States are hospitalized each year due to the seasonal flu, domestic COVID-19 hospitalizations between August 1, 2020 and September 10, 2021 totaled over 2,876,000.[26]

Additionally, “[w]hen viewed from the perspective of mortality, COVID-19 proves to be more deadly than the seasonal flu.” He noted that there were an “estimated 61,000 domestic deaths due to the 2017-2018 seasonal flu, the highest recorded in the decade preceding 2020.”

Moreover, as of mid-September 2021, Judge Leeson pointed out that COVID-19 was deemed “responsible for more than 660,000 deaths in the United States.”[27]

“Accordingly,” Judge Leeson determined, “viewed objectively, COVID-19 is not ‘minor.'”[28]

Thus, the court held that Matias had sufficiently alleged that Terrapin regarded her as disabled under the ADA “when it terminated her the same day that she disclosed her positive COVID-19 test result,” and that “Terrapin fail[ed] to meet its burden to establish that COVID-19 represents a transitory and minor impairment so as to exempt it from
coverage under the ‘regarded as’ provisions” of the ADA.[29]

Lessons From Matias — and a Warning

The Matias decision serves to remind ADA practitioners that even if infection with COVID-19, in and of itself, may not rise to the level of an actual disability, if an employer takes an adverse job action against an employee after testing positive for COVID-19, that employee could well have a regarded-as disability claim.

Moreover, Judge Leeson’s opinion sets forth a solid factual basis as to why COVID-19 is not a minor impairment, even if it may be transitory. It is likely, therefore, that the opinion will be cited as persuasive authority by plaintiffs’ counsel who are pursuing COVID-19 regarded-as disability discrimination lawsuits. Nonetheless, citation to Matias may be a double-edged sword.

That’s because the opinion erroneously cites to, and relies upon, case law interpreting the narrow, superseded definition of being regarded as disabled, which requires a plaintiff additionally to show that his or her actual or perceived impairment was viewed by the employer as substantially limiting a major life activity. In short, Matias is a case where the court reached the correct result, but in doing so, made some missteps as to the proper interpretation of the law.

Accordingly, any citation to Matias should be done with care, recognizing that the court’s
citation to, and reliance upon, case law addressing the original version of the ADA no longer
is good law.

DGRead 21.10.15

ADA Protections for Virus Long Haulers?; Pay Attention to the New COVID-19 Rules; Arlington Magazine Recognizes DiMuro and Ginsberg

How Virginia’s new COVID-19 rules affect your workplace

By Jonathan R. Mook

The nature of the COVID-19 outbreak continues to shift, with the so-called fourth wave straining healthcare systems in many communities. Recognizing the changes, Virginia’s Department of Labor and Industry (DOLI) has imposed new coronavirus workplace requirements affecting all employers within the Commonwealth. Building on its existing standard for infectious disease prevention, first put into action in January 2021, the Virginia Safety and Health Codes Board recently issued amendments, which Governor Ralph Northam approved and which became effective in September 2021.

New requirements

In some ways, the new COVID-19 requirements have simplified the safety measures you must follow by establishing one set of rules applicable to all workplaces, with expanded mandates only for healthcare facilities and those deemed to be “higher-risk” workplaces. And the amendments make clear that by following current guidance and recommendations from the U.S. Centers for Disease Control and Prevention (CDC), you will be considered as acting in compliance with the Virginia standard.

In addition to simplifying some previous safety requirements for Virginia employers, the amended standard does impose some important new rules you need to follow.

Masking. The amended standard takes into account the delta variant’s more contagious nature by requiring every employer located in CDC-designated areas of substantial or high community transmission to have all employees (whether vaccinated or not) wear face masks. The only exceptions allowed are when:

  • An employee is alone in a room or actively eating or drinking (with unvaccinated individuals keeping at least six feet away);
  • Seeing someone’s mouth is important (such as communicating with a hearing-impaired person);
  • Because of a disability, an employee can’t wear a mask; or
  • Wearing a mask would pose a work hazard.

At the present time, every Virginia county or city is designated as being located in an area of substantial or high community transmission. Accordingly, the masking requirements presently apply statewide.

Vaccination surveys. Although the amended standard doesn’t impose any mandatory vaccination or testing requirements, you still should survey the COVID-19 vaccination status of your employees and take additional precautions to protect individuals who aren’t fully vaccinated. In responding to the survey, your employees need not present proof of vaccination. A written affirmation about vaccine status should be sufficient.

Protecting unvaccinated workers. For employees who report they aren’t fully vaccinated, you must take steps to ensure they are able to maintain physical distancing. Thus, you should post signs or display other visual cues to remind them of the need to physical distance. You also should decrease workplace density by limiting the number of employees in areas of the worksite.

Handling COVID-19 cases. All Virginia employers must institute policies and procedures to ensure employees with confirmed or suspected COVID-19 infections don’t enter the workplace and remain out according to the CDC guidelines. If there’s a confirmed COVID-19 case, you must notify other potentially exposed individuals, while keeping the employee’s identity confidential.

Confidentiality. An employee’s vaccination status as well as a positive COVID-19 diagnosis must be treated as a confidential medical record and shouldn’t be shared with anyone who doesn’t need to know.

Policies and procedures. All Virginia employers need to put in place new policies and procedures that conform to the amended standard. The policy must include a method to receive and resolve anonymous complaints of policy violations. It also must specifically require employees to report if they are experiencing symptoms consistent with COVID-19 or have been diagnosed with COVID-19 so you may take the appropriate steps to ensure the safety of all your employees.

Reporting. If you have two or more positive cases in the same workplace within a 14-day period, you must report it to the Virginia Department of Health and the DOLI.

“Higher risk” workplaces. If you have (1) nonvaccinated employees, (2) locations in areas of substantial or high community transmission, or (3) otherwise at risk employees (such as those with compromised immune systems), you will be deemed to have a “higher risk” workplace. The amended standard requires employers with 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan and to train employees on the plan by November 7, 2021. (Fully vaccinated employees may be provided written information in lieu of training on the amended standard as well as site-specific procedures that will be followed in conformity with the standard’s requirements.)

Bottom line

The amended standard imposes significant new requirements on all Virginia employees to curb the spread of COVID-19. Therefore, you should take steps now to implement the new rules and, where appropriate, update your current policies and procedure.

To ensure you are in compliance, it’s always advisable to consult with experienced employment counsel who can assist you in implementing the new requirements and, additionally, help you to respond to COVID-19 issues as they arise. The last thing you want to deal with in these difficult times is a DOLI enforcement action for failure to maintain a safe workplace.

Jonathan R. Mook is a partner with DiMuroGinsberg, P.C., in Alexandria, Virginia. For more information about Virginia’s amended standard and best practices in developing policies and effective procedures to ensure compliance with the state’s COVID-19 workplace safety requirements, please contact jmook@dimuro.com.