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The Retail Employer

The Retail EmployerOctober 2008

Title III of the Americans with Disabilities Act—Responsibilities of Places of Public Accommodation

by Jeanne Montross and David E. Nagle

The Americans with Disabilities Act (“ADA”), which was signed into law in 1990, protects the civil rights of people with disabilities. Title III of the ADA forbids discrimination “on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages and accommodations of any place and by any person who owns, leases or leases to, or operates a place of public accommodation.” 

As places of public accommodation, retailers are subject to Title III of the ADA and have seen an increasing number of such lawsuits, most relating to physical building access, which is the focus of this article.

Retailer or Landlord . . . or Both?

The ADA places responsibility on both retailers and their landlords for compliance with Title III.  Nevertheless, the parties may negotiate and allocate in the lease who will actually take the necessary actions to meet compliance requirements.  Therefore, it is important to understand both your obligations under the law and those obligations created under the lease.  Remember that regardless of what your lease says, both parties are still legally responsible under the law and, therefore, you should still take action to enforce the applicable lease provisions to ensure Title III compliance.

Basic Requirements under Title III

Places of public accommodation must comply with the basic nondiscrimination requirements of the ADA that prohibit unequal treatment or exclusion based on disability.  They must also make reasonable accommodation to policies, practices and procedures; ensure effective communication for people with hearing, speech or vision disabilities; comply with specific new construction requirements; and remove barriers in existing buildings where “readily achievable.”

New Construction

The ADA requires that all new construction (whether an entirely new building or new construction on an existing building) commenced after 1993 must be ADA compliant.  This actually is a fairly easy requirement to meet, as all new construction requires ADA compliance at the permit stage, so you take care of it early as part of your building process.

Existing Buildings

Title III also requires that existing buildings constructed prior to 1993 have access barriers removed when doing so is “readily achievable.”  Most retailers find this aspect of the law more difficult to understand and implement.  The first step is to realize that these requirements do apply to buildings constructed before 1993.  The second step is to translate the vague “readily achievable” standard into something more concrete.  The readily achievable requirement is based on the size and resources of the business and has been described as “easily accomplishable and able to be carried out without much difficulty or expense.” 

The following are examples of actions that are, in many circumstances, considered “readily achievable:”

  • Parking lot:  Install ramps, make curb cuts, and create handicap-accessible parking space
  • Entrance:  Widen doors, eliminate turnstiles, and ensure door handle is accessible
  • Aisles: Reposition shelves, rearrange display racks and/or furniture
  • Restrooms:  Increase space in toilet stalls, install raised toilet seat, and install grab bars

Finally, if physical barriers cannot be removed, alternative steps must be taken to make goods and services accessible.  Such measures may include retrieving merchandise from inaccessible shelves or racks, or relocating merchandise to accessible locations.

Take Preventative Action Now

Do not assume that Title III of the ADA only applies to new construction.  Prevent potential lawsuits by simply doing what you do each day - take a critical eye to your location to ensure a good shopping experience for your customers.  Look for potential barriers and consider whether there are “readily achievable” actions you can take to make your location more accessible for disabled customers.  Seek professional assistance where appropriate.

Jeanne Montross and David E. Nagle are in the Richmond office of Jackson Lewis, a law firm devoted to the representation of employers in workplace issues, with 500+ attorneys in 41 cities across the country.  They advise and represent employers with respect to legal issues in the workplace and David has advised employers for 27 years. David is a partner in the Richmond office of Jackson Lewis and may be contacted at (804) 648-4077, or at nagled@jacksonlewis.com. Jeanne Montross may be reached at (804) 212-2860, or at jeanne.montross@jacksonlewis.com.

Calls requesting information on the Employment Law Information Program should be directed to Preston Perrin with the Retail Merchants Association at 804-662-5500.

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Keeping Your Workplace Well—Tips to Combat Presenteeism

The arrival of cold weather also means the arrival of cold and flu season. Sometimes, sick employees continue to show up for work, bringing their germs along with them. When sick employees come to work instead of staying at home and recuperating, this is called presenteeism. Employers report it as a growing problem, for many reasons.

First, there’s an increased risk of spreading illness to other workers and customers. According to the annual CCH Unscheduled Absence Survey, 87% of employers reported that sick workers come to work with short-term illnesses that can easily spread. Also, there’s an increased chance for errors along with loss of productivity and creativity when employees are sick on the job. All this can add up to a hit to the bottom line. In fact, research shows presenteeism can cost employers $2,000 per worker per year.

Solving the Problem of Presenteeism

The most common tactic employers use to address presenteeism is simply sending sick workers home. The CCH survey found that 54% of employers utilize this approach to reduce presenteeism. Here are a few other tips to combat presenteeism.

  • Paid Time Off (PTO) Policies—Sixty-nine percent of employers reported that having a paid time-off system helps deter presenteeism, according to the CCH Survey. An employee can use PTO at their own discretion, which enables them to feel less obligated to come in when they are sick.
  • Carry Over PTO-Sick Leave—In addition to having a PTO policy, you may want to consider implementing a carry-over policy, so that employees can carry over some or all of their unused sick days each year. Having extra sick leave can help employees take the time they need to fully recuperate.
  • Education and Wellness Programs—Keeping workers healthy is the most cost effective tactic employers can use. Wellness programs help companies proactively help employees manage their health and avoid becoming ill to begin with. It’s also important to educate your workers on where the company stands about coming to work sick and the importance of avoiding spreading illnesses to others.
  • Working from Home—Telecommuting is another method many employers use to help combat presenteeism. If an employee is contagious or recovering from an illness, consider allowing them to perform their work functions from home. This method is best used for illnesses or conditions that don’t hamper cognitive processes but may be contagious – like chicken pox. The CCH Survey shows that 30% of companies are allowing sick workers to telecommute.
  • Flu Shot Programs—A preventative approach for employers to battle presenteeism is to provide on-site flu vaccinations. Vaccination programs were available to 66% of the companies surveyed by the CCH Survey.
  • Use Temporary Help—The CCH Survey reports that only 25% of companies have a plan in place in the event that a large percentage of employees become sick. But you can always turn to a staffing agency for help. When you regularly utilize temporary staffing to cover workloads when employees call in sick, your workforce will be reassured that their work will be taken care of while they recover.

Stocking up on tissues isn’t the only way to prepare for flu season. Consider alternative programs to promote health and prevent illness. Employers can keep the majority of their co-workers healthy while allowing sick workers to recover by making an effort to curb presenteeism.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Ms. Lorraine Alexander at 804-550-0200 or lorraine.alexander@expresspersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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Limiting Political Discussions in the Workplace

No matter how this year’s presidential election ends, it will end historically.  With one month left before the election, workplaces everywhere are abuzz with employees expressing their beliefs and pitching the candidate who shares those beliefs.  Such chatter can range from enlightening or interesting to annoying, upsetting or even harassing.  The characteristics of the candidates alone spark discussions about race, gender, and age—all legally protected classes and sources of discrimination claims.

Despite popular belief, private employers can generally limit political discussions in the workplace without stepping on an employee’s freedom-of-speech rights.  Exceptions apply to employees of the federal government, and there are some rights to political expression under the National Labor Relations Act.  Outside of these exceptions, however, employers have a right to restrict political conversation, as they would any other topic potentially disruptive to productivity or offensive to some employees.

An outright ban on political discussions in the workplace isn’t necessarily the answer, as it would be difficult to police.  But, establishing limits on such discussions can go a long way towards reducing the impact that politically-charged topics can bring.  Those limits include:

  1. Employees should only engage in political conversations with others willing to partake in such discussions.  Where a willing participant later decides to withdraw from such banter, the wishes of that employee to be excluded from the topic should be honored.
  2. Political discussions should never take place with or in front of a customer.  What your employee says to a customer is likely to be considered the company’s stance, and if that’s against the customer’s beliefs, then you can consider that customer a former customer.
  3. Supervisors and managers should refrain from discussing their political beliefs.  Subordinates with opposing views can feel intimidated or threatened by a manager who fundamentally disagrees with them. 
  4. Remind employees of your handbook policies concerning personal use of company property, such as voice mail, email, copiers, faxes, etc.  Well-written policies generally prohibit personal use of these resources, and political banter or material would be included.  In fact, depending on the circumstances, such use could be considered an illegal contribution to a political campaign.
  5. Also remind your employees that company policies concerning harassment, violence, etc. also apply to political discussions.  Even if embedded in a political framework, discriminatory remarks or comments that could anger employees and induce violence are no less a violation of these policies than non-political statements.
  6. As is always the case in handling employee issues, be consistent in how you administer discipline for violations.  Political discussions should not be treated any differently than any other provoking topics.

©  2008 Cole James Associates, Inc.

This is meant to be general information on a complex topic.  It should not be considered legal advice, nor is it a replacement for seeking professional counsel for your specific situation.

Charlotte Jensen is a Human Resources Consultant for small businesses (2-75 employees).  As President of Cole James Associates, Ms. Jensen provides her clients guidance on their employment and workplace issues.  She can be reached at cjensen@colejamesassociates.com or www.colejameshr.com.

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Longwood University Survey Regarding Use of Facebook

Longwood University is surveying business professionals regarding an aspect of the hiring process of college graduates.  There is a concern among college advisors today that prospective graduating job seekers may not anticipate the serious ramifications of their youthful postings to Facebook and similar websites.

The data obtained from this survey could be helpful in directing student attention to the possible long term effects of Facebook activities. 

Please contact Mr. Steve Barnett, representing Longwood University and is a former Chairman of the Board of the Retail Merchants Association, with any questions at 804-740-9773.

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