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Coronavirus Update 6–30–2020: CDC now recommends that people wear cloth face coverings in public

Your cloth face covering may protect them. Their cloth face covering may protect you. As COVID-19 cases spike nationwide, and the CDC warns that we have "way too much virus" to control the pandemic, that same agency just released new guidance recommending that people wear cloth face coverings when in public.  The highlights:CDC recommends that people wear cloth face coverings in public settings when around people outside of their household, especially when other social dista...
Tags: Law, Cdc, Ada, Jon Hyman


A Review of the “Final” CCPA Regulations from the CA Attorney General

On June 2, the California Attorney General’s office (the DOJ) released hundreds of pages of new material about its CCPA regulations, including 11,000+ words of its “final” regulations and a 59 page “final statement of reasons” purportedly explaining the DOJ’s thinking. This blog post recaps the regulations. Timeline for Development of the CCPA Regulations June 28, 2018: California enacted the CCPA. The law was initially scheduled to take effect January 1, 2020. January to March 2019: the DOJ he...
Tags: Law, Congress, California, Ada, Doj, Usc, Privacy/security, Eric Goldman, Newsom, CCPA, OAL, Office of Administrative Law OAL, Senate Judiciary Committee Hearing, California Assembly Hearing


Coronavirus Update 6–23–2020: Must you accommodate an employee with a high-risk family member?

A bit of personal news: I have requested the opportunity to work from home for the fall semester because of my daughter’s heart condition. I found out this afternoon that it was rejected because it is my child’s condition and not mine.— Jason Helms (@helmstreet) June 17, 2020 One of the questions I have received most from clients during this pandemic comes in some variation of the following: "An employee [does not want to come into work / wants to work from home / wants a leave of absence] bec...
Tags: Law, Ada, EEOC, DOL, Jon Hyman, Jason Helms


Reviewing the Americans With Disabilities Act’s Application to Websites–Martinez v. SDCCU

Following the Ninth Circuit’s Robles v. Domino’s opinion, we’ve entered a period of relative clarity about when websites constitute “places of public accommodation” for purposes of the Americans With Disabilities Act (ADA). A recent court opinion, over a financial institution’s website that allegedly doesn’t work with screen readers used by blind customers, helpfully summarizes where we are at. The court’s bottom line: Although the courts have not yet articulated a single clear standard on this ...
Tags: Law, Congress, E-commerce, Noah, Netflix, Harvard, Missouri, Aol, Credit Union, Ada, Doj, Young, Domino, Martinez, Robles, California Court of Appeal


The Predictable Unpredictability of COVID-19 Antibody Testing

Can I test my employees for COVID-19? Over the course of the last few months, it feels like the answer to that question has been Yes, No, and It Depends. And maybe all three at the same time. In fact, if you look at my post from April 2020, you’ll see the differences in the guidance between then and, as I’ll explain below, now. Quite simple, with more science, we’re starting to get greater clarity on what testing is permissible for employees. For antibody testing, the CDC recently updated its in...
Tags: Law, Cdc, Ada, EEOC


Coronavirus Update 6–19–2020: How to communicate when an employee tests positive

Positive COVID-19 tests are sadly the reality of 2020, and likely at least part of 2021. Nationally, 2.23 million of us have tested positive for coronavirus. If your employees have been fortunate enough so far to avoid the virus, the odds are good that before this pandemic is over one or more of your employees will test positive. Before we discuss the right way to communicate a potential workplace exposure to your employees, let's explore the wrong way, via one of my favorite punching bags, t...
Tags: Facebook, Law, Ada, Jon Hyman, COVID


Friday round-up

Yesterday the Supreme Court decided another of the term’s most closely watched cases, Department of Homeland Security v. Regents of the University of California, ruling that the government’s decision to terminate the DACA program, which allowed undocumented young people brought to this country as children to apply for protection from deportation, violated the procedural requirements prescribed for administrative agencies. Amy Howe analyzes the opinion for this blog, in a post that was first publ...
Tags: Usa, Texas, Supreme Court, Law, Congress, Court, US, Bloomberg, Joe Biden, Cnn, Atlantic, New York Times, Fox News, Npr, Donald Trump, Ada


Coronavirus Update 6–18–2020: Errata—employers cannot require antibody tests of employees, says EEOC

Two months ago I suggested that the EEOC would conclude that employers could require COVID-19 antibody tests as a condition of employment. Yesterday, based on updated guidance from the CDC, the EEOC said the exact opposite. Given the inherent unreliability of COVID-19 antibody tests, I'm happy to have been wrong. According to interim guidance the CDC recently published, COVID-19 antibody test results "should not be used to make decisions about returning persons to the workplace."  Bas...
Tags: Law, Cdc, Ada, EEOC, Jon Hyman, Vincent Ghilione


Coronavirus Update 6–15–2020: COVID-19 is not an excuse for age discrimination

Consider these headlines: Older Workers Grapple With Risk of Getting Covid-19 on the JobOlder Workers Returning to Office Fear Both Virus and Job LossAge, Pregnancy Discrimination Concerns Raised Ahead of Returns to Worksites While there's still a lot we don't know about COVID-19, one of the things we do know for sure is that is much more greatly impacts people age 65 and above.  Indeed, according to the CDC, 80.6 percent of all coronavirus deaths are in that age bracket. These fatality...
Tags: Law, Cdc, Ada, Don, EEOC, ADEA, Jon Hyman, Museums Victoria, Coronavirus, COVID


Section 230 Ends Demonetized YouTuber’s Lawsuit–Lewis v. Google

Lewis ran a YouTube channel called “Misandry Today.” Misandry is hatred of men, like misogyny but with reversed genders. I didn’t look at Lewis’ content but I worry that its examples of alleged misandry actually might be presented to advance a misogynistic narrative. Whatever the case, YouTube demonetized, restricted, or removed some of his videos. He sued YouTube for: violating the First Amendment national origin discrimination (allegedly, YouTube acted because he “is a patriotic American citi...
Tags: Google, Facebook, Twitter, Yahoo, Law, Colorado, Youtube, Marketing, Icann, Green, Noah, United States, Aol, Johnson, Ada, Richard


ADA and disabled rights roundup

If you think reopening a retail business with new distancing rules is a challenge, wait till you see the interplay with the ADA, as I explain in my new post at Cato; Court dismisses class action against Wendy’s on behalf of disabled persons unable to use after-hours drive-up service as a walk-up [Davis v. Wendy’s International, a pre-pandemic case; earlier here, here, and here on ADA complaints regarding drive up windows] “Why is subway accessibility so expensive? It’s not just about install...
Tags: Law, Colorado, Court, Uncategorized, Transit, Davis, Associated Press, Ada, Doj, Vermont, Wendy, Cato, EEOC, Daniel Schwartz, Disabled Rights, Web Accessibility


Reopening Guidance – But What About the Older Workers?

“Come out to the coast, we’ll get together, have a few laughs”.   Sounds like a plan for reopening businesses in Connecticut next week, right? Well, that quote is from Bruce Willis’s character in one of my favorite movies, Die Hard. It might also be in peril if you are the same age as Bruce Willis is now — 65. (Yes, really, he’s 65 years old.) See, the reopening guidelines in Connecticut have this line: “Those in high-risk groups (comorbidities) and over the age of 65 should continue to stay saf...
Tags: Law, Cdc, Connecticut, Ada, Bruce Willis, EEOC, John McClane, ADEA, FFCRA, Sarah Westby


Coronavirus Update 5-8-2020: Can you legally refuse to return to work to someone at “high risk” for COVID-19 complications?

As you start recalling employees to your physical workplace from remote work-from-home arrangements or furlough, you are concerned about an employee who has an underlying medical issue that the CDC says places him at a higher risk for complications from coronavirus. Can you refuse to return this employee to work? According to recently updated guidance from the EEOC, the answer might be “yes.” According to the CDC, the following medical conditions places one at a higher risk for severe illn...
Tags: Jon Hyman


New York federal court shoots down Braille gift card suit

Hurray! Ruling in a suit against retailer Banana Republic, a New York federal judge has rejected a plaintiff’s claim that issuing gift cards without providing a version in Braille was a violation of the Americans with Disabilities Act. Among other theories, the judge ruled that a gift card was not a “place of public accommodation,” and that a law-firm client who had never asked for such a card in the first place could not complain of the lack of an individualized attempt to accommodate the reque...
Tags: New York, Law, Uncategorized, Manhattan, Ada, Woods, Banana Republic, Kohl, Supra, Daniel Fisher, Braille, ADA filing mills, Disabled Rights, Michael Steinberg, Minh Vu Seyfarth Shaw, Meredith Slawe


Coronavirus Update 4-29-2020: Governor’s DeWine’s explanation for why masks are only “recommended” falls woefully short

I tuned in yesterday to Governor DeWine’s 2 pm briefing to learn why Ohio had changed its stance on face masks and coverings from “mandatory” to “recommended best practice.” His explanation falls way short. The Governor offered two explanations, both based on feedback he received from constituents in the hours after his original pronouncement. Masks are offensive to some, who don’t like the government telling them what to do. Masks can be problematic for people with disabilities. The a...
Tags: Law, Ohio, Ada, DeWine, Jon Hyman, Jon Tyson, Coronavirus


Small business could use some advance funding. Too bad gift cards are a legal mess.

Gift cards make a nice way to support your favorite business during the pandemic shutdown. They also make a compliance trap that can mire that same business in years of expensive hassle. My new piece at Reason explores the many legal exposures, from ADA lawsuits over lack of Braille translation to class actions over fine print and even exposure to money-laundering liability. One durable problem, in some states at least, is state unclaimed-property law. Thinking of tossing a gift card into a dr...
Tags: Taxes, Small Business, Law, Uncategorized, Atlantic, Ada, Delaware, Overstock, Property Law, WO writings, COVID-19 virus, Blue Hen State


Coronavirus update 4-21-2020: Can and should employers require antibody testing as a return-to-work condition?

We all want to get back to work as safely and as quickly as possible. One thing that would allow us to do this with confidence is widespread antibody testing—a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity, and a reasonable degree of safety for an employee to return to work. This testing, however, raises two critical questions. 1/ Can employers legally require it? 2/ Should employers rely on it as an indicia of safety? ...
Tags: Law, New York Times, World Health Organization, Fda, Ada, EEOC, Jon Hyman, Vincent Ghilione


Antibody Testing as a Return to Work Requirement? Not So Fast

It seems clear now that we are far from the end to this pandemic. But, just as clearly, we are now reaching the end of the beginning of this pandemic. We’ve been staying at home for several weeks and some other states are already considering loosening the restrictions.  Essential employees can still work but employer are asking questions about how best to keep the workplace safe. One question that seems to be popping up: Can employers require antibody testing as a condition for employees returni...
Tags: Law, Cdc, United States, Yale, Connecticut, Ada, EEOC, Hartford Courant, Jon Hyman, COVID


Quick Hits: Independent Schools FAQ, EEOC and OSHA Updates, CHRO Best Practices for Investigations

Within the last few days, the pace of new guidance from both the state and federal governments has slowed down just a bit. Now, we seem to be preparing for the next ‘phase’ of this pandemic. Whatever that looks like. The state courts have been at a virtual standstill but we are starting to hear signs that the courts are working on plans to run some business such as teleconferences etc.; the Supreme and Appellate Courts are beginning their work virtually too.  Video conferencing is on its way. Th...
Tags: Law, Ada, PPP, EEOC, EEO, OSHA, Chro, Commission on Human Rights Opportunities, Shipman Goodwin LLP, Hartford County Bar Association, Supreme and Appellate Courts


Coronavirus Update 4-8-2020: Employers, if you are requiring your employees to wait in line for a coronavirus fever check, please pay them for waiting

Bloomberg Law asks whether employers are “responsible for paying workers for the time it takes to record their body temperatures before entering the workplace.” To me, this question doesn’t require a legal analysis but a common-sense application of basic decency. If your employees are queuing before entering work because you are requiring them to pass a temperature check, pay them … period. Since this is a legal blog, however, I might as well look beyond common sense and examine the laws im...
Tags: Amazon, Law, Who, Ada, EEOC, FLSA, Integrity Staffing Solutions, Jon Hyman, Norah, Bloomberg Law, Busk the Supreme Court, Busk, Zoominar, Paycheck Protection Program, Tedward Quinn


Tuesday round-up

Yesterday evening, the court, by a vote of 5-4 along ideological lines, granted a request by the Republican National Committee and the Republican Party of Wisconsin to block a lower court order extending the deadline for mailing absentee ballots in Wisconsin’s primary election today. In a post for this blog that first appeared at Howe on the Court, Amy Howe reports that the opinion “by a sharply divided court means that in-person voting will go on [today] as scheduled; absentee ballots will be c...
Tags: Supreme Court, Law, Washington, Court, New York Times, Wisconsin, Kansas, Npr, Usa Today, Ada, Republican National Committee, Trump, Round-up, The Supreme Court, Howe, Adam Liptak


Monday round-up

Ariane de Vogue reports at CNN that “[u]ndocumented immigrants who work as health care providers are asking for their efforts fighting the coronavirus to be taken into consideration as the Supreme Court considers the Trump administration’s bid to phase out the Deferred Action for Childhood Arrivals program,” in Department of Homeland Security v. Regents of the University of California. For The New York Times, Adam Liptak reports that in a letter filed with the court on Friday, attorneys for a gr...
Tags: Usa, Supreme Court, Law, Washington Post, New York City, Court, Cnn, Comcast, Ada, Department Of Homeland Security, Trump, Round-up, Robert Barnes, Adam Liptak, Richard Wolf, Pacific Legal Foundation


Wednesday A.M. Coronavirus Recap: DOL Guidance & Updated FAQ

To : There are years when nothing happens and there are days (and weeks) when years happen. The nonstop barrage of news, orders, and other materials continues making updating a blog on the subject feel hopelessly out of date the moment you click “Publish”. So rather than any lofty posts this morning, I’m just going to highlight some resources for employers and what I’ve been participating in too. Late Tuesday, the US Department of Labor released guidance on interpreting the new coronavirus (CO...
Tags: Law, United States, Connecticut, Ada, CBA, EEOC, DOL, Jeff Nowak, US Department of Labor, FMLA, Connecticut Department of Labor, WNPR, State of Connecticut, Hartford Court, Interlaw Ltd, South Korea China Norway UK Germany


Tuesday round-up

Yesterday the court released opinions in four argued cases, by posting the rulings on its website at five-minute intervals rather than delivering them from the bench as it usually does. Kevin Daley reports at The Washington Free Beacon that it was “the first time since Bush v. Gore that the justices issued rulings without reading decisions from the bench during an official public session.” In Kahler v. Kansas, the justices ruled 6-3 that the Constitution’s due process clause does not require Kan...
Tags: Supreme Court, Law, Congress, Los Angeles, Comcast, Kansas, Usa Today, North Carolina, Ada, Gore, Trump, Round-up, Bush, Reuters, Anne, John Roberts


Coronavirus Update 3-18-2020: “Gag and vote for it anyway,” and an EEOC update

It looks like the Families First Coronavirus Response Act is one step closer to becoming law … just not quite yet. During a lunch meeting of Senate Republicans yesterday, Majority Leader Mitch McConnell told his constituency they should pass the bill. He did so, however, in the most Mitch McConnell way possible. A number of my members think there were considerable shortcomings in the House bill. My counsel to them is to gag and vote for it anyway. To his credit, McConnell added that he wante...
Tags: Law, Cdc, Senate, Afghanistan, United States, House, Rand Paul, Mitch McConnell, Ada, Trump, PAUL, EEOC, McConnell, Jon Hyman


COVID-19 pandemic roundup

Certificate-of-need laws in 38 states restrict hospital bed capacity by giving competitors a lever to object. More beds would have helped with emergency preparedness [Jeffrey Singer; more from Eric Boehm; bed crisis feared within weeks] White House, Congress negotiate on liability-limit measure aimed at freeing up 31 million expired but usable masks; “3M and Honeywell don’t feel comfortable providing them without assurances they won’t be sued.” [Michael Wilner, McClatchy; latest on HHS proclam...
Tags: Supreme Court, Law, China, Singapore, Medical, Uncategorized, Hospitals, Public Health, New York Times, Disasters, Newark, Ada, First Amendment, Honeywell, Mike Masnick, EEOC


Privacy Considerations for Employers and Health Care Providers When Communicating about Coronavirus-Infected Individuals

Ryan Blaney, Kelly McMullon and Mathilde Pepin This alert focuses on the ongoing and developing privacy issues that have arisen for employers and healthcare providers communicating about the 2019 novel coronavirus (COVID-19).  Specifically, we will discuss the steps that employers and healthcare companies need to consider when communicating to its employees, the media and general public, and government officials when an individual has been diagnosed with the coronavirus or may have been exposed ...
Tags: UK, Law, Cdc, France, United States, NHS, Health Care, Ada, Centers For Disease Control And Prevention, New York State, HHS, HIPAA, Centers for Disease Control and Prevention CDC, Proskauer, Healthcare Providers, French Data Protection Authority


A Preliminary Connecticut Employer FAQ on COVID-19 (Coronavirus)

As Connecticut reported it’s first known COVID-19 cases over the weekend, it is becoming apparent that the time for preparation for a pandemic is starting to end, and the time for action items is beginning. To that end, it seems that nearly every lawfirm is starting to compile answers to some frequently asked questions. For a few examples of ones I found useful of late, look at FisherBroyles, Littler, FisherPhillips and FaegreDrinker just to name a few. Everyone’s advice is fairly similar here s...
Tags: New York, Law, Cdc, Massachusetts, United States, Connecticut, Italy, Ada, Joe, EEOC, Department of Public Health, Biogen, Hartford Healthcare, FisherBroyles Littler FisherPhillips, Connecticut PSL


WIRTW #590 (the “win some, lose some” edition)

Life is often about competition. For example, I litigate for a living. Trials have winners and losers. We also compete for jobs, for college admissions, and for sports titles. And competition requires a winner and some losers.Some things, however, we do just for the experience, even if that experience is built around competition. Last weekend, my daughter’s band, Fake ID, competed in the finals of the Tri-C High School Rock Off. Even though they did not win the competition, they won the event...
Tags: Law, Bloomberg, Canada, New York Times, Connecticut, Biden, Ada, Nlrb, Robin Shea, Rock Roll Hall of Fame, Eric Meyer, Jeff Nowak, Dan Schwartz, Rock Hall, FMLA, Jon Hyman


Comments on the DOJ’s Proposed Modifications to the CCPA Regulations

In October 2019, the California Department of Justice (DOJ) published its first draft of regulations under the CCPA. These regulations attracted 1700 pages of comments, including a submission from me. Earlier this month, the DOJ published proposed revisions to those regulations. I’ll call the October draft the “regulations” and the February changes the “revisions.” At minimum, the DOJ had to update the proposed regulations to fill in one conspicuous blank, the button design for opting out of da...
Tags: Law, California, Ada, Doj, Privacy/security, Eric Goldman, WCAG, CCPA, California Department of Justice DOJ, Senate Judiciary Committee Hearing, California Assembly Hearing



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