In the post on Sunday 5/15/2022 it was “Heigh Ho, Heigh Ho, It’s Back to Work We Go – But Can My Dog Go Too?” This post was what to know – and do – about emotional support animals. When COVID hit over 2 years ago, people retreated to their homes and fur-babies. And how many got a new cat or dog? See the post. The animals provided emotional support for dealing with stress, depression, and anxiety that may have come about as a result of the pandemic. But what about now that workers are (going back) in the office; what happens to the ESAs? The post defines what an emotional support animal is, helps you understand employer obligations under federal law, and identifies best practices if the animal is not allowed to go to the office. First, an ESA is NOT a service animal. But what it is is in the post. There is no official oversight as to the qualifications of a pet as an ESA nor is there any requirement for a pet to be evaluated by a qualified animal evaluator to be called an ESA. And while only dogs and miniature horses can be service animals, any domestic animal can be an ESA. Companion iguana anyone? So once the employee requests an accommodation to bring the ESA to the workplace, what is the employer to do? Follow the ADA interactive process as described in the post. Part of the process is thinking of ways to accommodate, such as a hybrid remote work option and more as noted in the post.
TAKEAWAY: What is being accommodated may have changed, but the process has not. Know the law and get legal help if needed.
The post on Monday 5/16/2022 noted that years after Flying Heart ruling, public access battle continues with Demi Moore involved. What is this about? According to a complaint to intervene in a court case, Demi Moore is fighting a settlement agreement that tried to put to rest a years-long dispute between the County and a private homeowner’s association over public access to the Big Wood River. Moore is suing both the HOA and county over an apparent plan to build paved public parking lots in the subdivision, one of which would sit just beyond her property line.. This came about based on a note in the plat that created the subdivision. In 1979. The language is noted in the post. Moore is upset because the parking area would “concentrate public parking directly in front of” a proposed future home on her property, “significantly affecting privacy.” Why else is she upset? See the post. According to Moore’s suit, HOA board members and attorneys for the Association crafted a settlement agreement to avoid a trial and resolve a long-standing lawsuit brought against the association by the county. Some of the terms of the agreement are in the post. Apparently Demi was in the minority when votes were counted – see the post. And what started this whole thing? The County first sued the Association in July 2019 after owners refused to remove “No Parking” signs from the county right-of-way on one street because, the county argued, the signs created a significant burden to access the river and made that part of the river effectively off-limits due to the threat of being towed. Then in August 2020 a judge ruled in favor of the county (what that said and its effect are in the post). The association filed a motion for reconsideration. In November 2020, the judge determined that a trial was needed to determine the size and location of a parking area or areas. Now Demi wants to intervene in the suit; her claims are listed in the post. The relief she seeks is also noted in the post, including $10,000 in damages from the Association for breaching its own CC&Rs. In her personal declaration, Moore wrote that there were “plenty of other suitable areas for the designated public parking” that would not impact her property. The judge was supposed to rule on the matter on May 16.
TAKEAWAY: Even celebrities must live within condo/HOA restrictions – a NIMBY outlook won’t carry the day. Contact a community association lawyer if you have questions/problems in or about your condo/HOA.
The post on Tuesday 5/17/2022 was about the good life of condo living – know the pros and cons. Location, no construction, amenities (like swimming pools, wellness centers and more as noted in the post) and more might be benefits of living in a condo. The condo association is supposed to ensure the safety and well-being of owners and renters and enforce the rules, policies and regulations. More? See the post. But there is a literal cost for all that. Owners pay a periodic fee/assessment that covers the association’s obligations including upkeep of the amenities, all as noted in the post.
TAKEAWAY: Living in a condo can be almost-maintenance free, but the trade-off is the cost of someone else doing the maintenance and living within the restrictions/rules.
The post on Wednesday 5/18/2022 told us a federal judge ordered serial ADA plaintiffs to show standing to sue in 9 ADA cases. This is in in San Francisco, but of course the ADA is federal law and applies everywhere. Here the judge ordered three disabled plaintiffs to prove they are entitled to bring their lawsuits. The ADA requires that a plaintiff genuinely expects to return to the place where they experienced discrimination. This weeds out testers, those who go around and try to find violations and sue just to collect a settlement fee. The order also involves the lawyers – why is noted in the post. Two of the three disabled plaintiffs identified in the multiple orders use wheelchairs for mobility and are frequent ADA litigators in the court. One filed 509 lawsuits and the other, who has alleged ADA violations by restaurants, auto repair shops, hair salons, liquor stores and even a welding shop … see the post. And what did the defendants say about the allegations? See the post. That plaintiff attracted media attention after he was indicted in May 2019. The post mentions why he was indicted. His suits allege that he physically visited the location of almost every one of the defendants he has sued, and in each case where he did, he personally encountered barriers to accessibility, and more as in the post. And why are the judge’s order important? Because the plaintiffs seek an injunction, so they must not only demonstrate injury by actions of the defendant but also that there is a real and immediate risk of harm in the future if the injunction is not issued. Why do the lawyers think the suits/arguments against their clients and them were filed? See the post.
TAKEAWAY: Before a court can make any decisions in a suit, it must have the authority to do so; that means any prerequisites must be met. Get legal assistance to bring or defend a suit.
The post on Thursday 5/19/2022 was about the 5 factors every successful diversity, equity and inclusion (DEI) policy should have. SMART goals. Each letter stands for something: specific, measurable, and the other 3 noted in the post. And then encourage employees to speak up about each of the 5 goals. Discuss. Engage. How to do that is in the post.
TAKEAWAY: Ensuring that the workforce reflects the works is important – but doing it legally is imperative.
The post on Friday 5/20/2022 noted condos/HOAs can ban political signs but lots of steps must be considered. First, the restriction (whether a rule adopted by the Board or an amendment to the Declaration adopted by the owners) needs to provide what type of signs are prohibited. Are there details as noted in the post? Second, realize that trying to specify the type of content that is restricted to “political” may be problematic. There might not be consensus on what “political” means – see the post for examples of the discord. One option, perhaps the best, would be to restrict all signs, regardless of content. Why? See the post. Alternatively, allowing political signs for a limited period of time prior to the election and requiring all political signs to be removed within a limited time frame after election day might be an easier alternative than attempting to ban political signs altogether. That option would work similarly to restrictions many associations have for holiday decorations.
TAKEAWAY: Before putting in place any new or revised restrictions, Boards or owners should check with a community association lawyer to ensure legality.
Finally, in the post yesterday 5/21/2022 we saw that employee fired near retirement claims age discrimination while company says misconduct. And what did the court say? Johnny Sims-Madison worked as a material handler for Dana Commercial Vehicle Manufacturing. For several years, employees had been filing complaints about Sims-Madison including that she spoke to them in a disrespectful manner and more as noted in the post. Management disciplined Sims-Madison but complaints continued. During one conversation HR had with Sims-Madison to discuss a suspension for the behavior, Sims-Madison revealed she planned on retiring in a few months. A final warning about her behavior was given to Sims-Madison. When it didn’t improve, she was fired. And then she sued for age discrimi-nation, claiming the employer only terminated her because she told them of her plans to retire soon. But on appeal the federal appellate court ruled in favor of the company. The basis of the ruling is explained in the post – and provides a bit of a roadmap for employers.
TAKEAWAY: document misconduct and have a solid, nondiscriminatory reason for terminations — particularly when the employee in question belongs to a protected class. And be careful if