Legal Pitfalls of the Virtual Workspace

By PHILIP R. VOLUCK AND JENNIFER L. PRIOR

The pandemic has reshaped the American workplace. While many employees have been gradually returning to the office, “teleworking” remains prevalent. According to a February 2022 report from the Pew Research Center, 59 percent of U.S. workers with teleworking privileges are working from home all or most of the time.

Logistical and legal challenges remain, particularly under Title I of the Americans with Disabilities Act (ADA) of 1990, which governs accessibility to the disabled in employment. According to the U.S. Department of Labor (DOL), employers can boost inclusion in the virtual workplace by creating accessible online meetings. Although recognizing that many companies have a preferred platform for hosting virtual meetings, the DOL believes that users frequently are unaware of the accessibility features already embedded in these platforms. By enabling these features, employers can remove barriers for employees, clients and guests in the meetings.

Employers that offer goods and/or services online must also comply with Title III of the ADA, which governs accessibility in public accommodations. Under Title III, depending upon location, businesses must ensure that their websites are accessible to the disabled, including the blind, so they can avail themselves of the goods and services offered on the website. According to a report from Accessibility.com, in 2021, 2,352 web access suits were filed against U.S. businesses, representing a 14 percent increase from 2020.

In 2021, 2,352 web access suits were filed against U.S. businesses, representing a 14 percent increase from 2020.

In March 2022, the U.S. Department of Justice (DOJ) released long awaited guidance for businesses, Guidance on Web Accessibility and the ADA, to make their websites compliant with Title III. The Guidance incorporates much of the already widely used Web Content Accessibility Guidelines, which define three levels of conformance. The Guidance sets forth a list of suggested features, such as using color contrast in text, allowing use of a browser’s zoom capabilities to increase font size, and building visual headings into the website’s layout for easy navigation.

Online hiring is a realm where both Title I and Title III overlap. While web access litigation under Title I is far less prevalent than under Title III, employers must nonetheless make sure their online job applications are accessible. The DOJ’s Guidance specifically advises businesses to ensure that screen readers convey field labels to blind users, and guide them regarding the information sought in each form field. In the employment context, an employer must grant an employee or prospective employee a reasonable accommodation, unless it would impose an undue hardship “requiring significant difficulty or expense.” However, in the web access context, a business is less likely to prevail on an undue hardship defense, due to the relatively insignificant cost to remove accessibility barriers, generally costing a maximum of a few thousand dollars.

Regardless of a business’s status as a public accommodation or employer, the best practice to comply with the ADA remains to consult with competent legal counsel and web developers to mitigate the risk of costly litigation. Developers can help businesses audit their digital platforms to ensure accessibility and assist with training employees on how to respond to inquiries, issues or complaints from either the public or prospective employees. In addition, businesses facing filed claims may wish to consult their insurance broker or insurer about whether they have any insurance coverage for the claim, including under an employment practices liability policy.

Philip R. Voluck is co-chair of the Labor and Employment Practice at Kaufman Dolowich & Voluck. He concentrates his practice in the area of employment practices liability defense. pvoluck@kdvlaw.com

Jennifer L. Prior is an associate at Kaufman Dolowich & Voluck. She focuses her practice in the area of employment practices liability defense. jprior@kdvlaw.com