Memoranda & FAQs
This law create a national standard to address the growing problem of commercial email, and into effect on January 1, 2004. In addition, the Federal Trade Commission issued a Rule on December 16, 2004 that became effective February 18, 2005 defining the “primary purpose” of an electronic message. IIABA produced an FAQ to explain key provisions of the law and how it effects insurance agency and brokerage members as well as state associations.
Members interested in reading about the legislative background and regulatory action plan can read a summary prepared by IIABA’s Federal Government Affairs staff.
On February 18, 2005, President Bush signed into law the Class Action Fairness Act of 2005 introducing significant changes to class action lawsuits. This federal legislation will affect the prosecution and defense of complex litigation across the country and it attempts to level the playing field for lawyers, businesses, and consumers alike. IIABA has prepared a summary of this legislation explaining key provisions of the law and how it affects insurance agency and brokerage members. Read the summary here.
This executive summary provides some basic information regarding the notice requirements when class action lawsuits settle or settlements are proposed. Read the summary here.
COBRA Premium Reduction Fact Sheet.
COBRA Continuation Coverage Assistance Under the American Recovery and Reinvestment Act of 2009 from the U.S. Department of Labor
Premium Assistance for COBRA benefits
This memorandum to Big “I” State Associations provides information about the New York DFS cybersecurity regulation provisions that address third-party service providers of companies licensed in New York. Read the memorandum here.
The Federal Communications Commission (FCC) published a Do-Not-Call (DNC) rule on July 25, 2003, amending its rules implementing the Telephone Consumer Protection Act of 1991. This rule impacts insurance agency and brokerage firms as well as trade associations. The rule addressed two broad categories of activities: (1) telemarketing; and (2) fax solicitations. This FAQ provides an overview of the rules governing telemarketing imposed by the FCC and the Federal Trade Commission (FTC).
Procedure for Electronic Delivery of Insurance Documents Pursuant to the Federal eSIGN Act and sample electronic delivery consent form.
Emergency Economic Stabilization Act of 2008 Summary
Overview of the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, and the Drivers Privacy Protection Act
- Notice to Users of Information of their Obligations under the FCRA
- Summary of Consumer Rights under the FCRA
- Notice to Furnishers of Consumer Reports of their Obligations under the FCRA
DOL Overtime Rule Basics for Members. View the PDF
Worker classification information: See “Worker Classification: Employee vs. Independent Contractor” below.
The Flood Insurance Reform Act of 2004 made significant changes to the flood insurance programs administered by FEMA, including extending the National Flood Insurance Program until September 30, 2008, creating a mitigation program to minimize future costs and damage to properties that have suffered severe repetitive flood losses, and authoring FEMA to develop regulations that will institute the use of new forms, develop a new handbook on filing flood claims and create new education and training requirements for agents who sell flood insurance. Read a summary of the Flood Insurance Reform Act and the changes that it makes. Read the entire text of the Flood Insurance Reform Act. Click here for the National Flood Insurance Program.
View the PDF
This article, which was prepared by the law firm Jones Day, provides an overview of the changes to HIPAA that stem from the American Recovery and Reinvestment Act of 2009.
The following article, which was prepared by the law firm Shearman & Sterling LLP, provides an overview of the changes to HIPAA that stem from the American Recovery and Reinvestment Act of 2009.
This article, which was prepared by the law firm McKenna Long & Aldridge LLP, provides information and a checklist for Business Associates to comply with the changes to HIPAA that stem from the American Recovery and Reinvestment Act of 2009.
The Junk Fax Prevention Act of 2005 went into effect on July 9, 2005. On April 5, 2006, the Federal Communications Commission enacted rules and regulations implementing the law. IIABA has prepared an updated FAQ on the Junk Fax Prevention Act and its rules and regulations. To read the FAQ, click here. After Congress passed the Junk Fax Prevention Act of 2005 (JFPA), California passed its own junk fax law that required written permission from recipients before any faxes could be sent into, out of, or within California. This state law would have restricted faxing permitted by federal law to those with whom there is an established business relationship. On February 27, 2006, a federal court in California declared the California law to be unconstitutional as to faxes sent into or out of California from other places. The court found that the JFPA preempts the California law for interstate faxes (that is faxes from outside California sent in or vice versa). The court also found that the state could enact more restrictive provisions than are in the JFPA for intrastate faxes (that is faxes sent within the state of California), and to the extend that the California law governed intrastate faxes, those provisions were upheld. The court did not rule on whether or not to grant the plaintiffs an injunction to prevent application of the state law due to uncertainty on whether the interstate and intrastate applications of the law could be treated separately under the law, and decided instead to hold off ruling until the parties had time to more fully brief the issue.
Department of Labor, Wage and Hour Division – FMLA Overview and News
Department of Labor, Wage and Hour Division – FMLA, as Amended (Public Law 103-3)
Department of Labor, Wage and Hour Division – FMLA Workplace Notice Poster (as of April 2016)
Read the FAQ on agent and broker responsibilities under the PATRIOT Act and regulations under the Office of Foreign Asset Control (OFAC). Read the Patriot Act.
See Fair Credit Reporting Act (FCRA) above.
The SEC votes to postpone compliance with Sarbanes-Oxley filing requirements for smaller companies. Read the summary. Read the Final Rule extending the compliance dates and detailing the proposed amendments.
To read a memorandum prepared by Federal Government Affairs on the Terrorism Risk Insurance Extension Act of 2005 that was signed into law on December 22, 2005. To help agents and brokers understand the impact of the Terrorism Risk Insurance Act, IIABA has produced an in-depth summary that offers an overview of the law’s major features. Through the Big “I” Virtual University, IIABA also has compiled an extensive online collection of informational resources that help explain how the new law is being implemented.
This includes a downloadable, brand-able agency-customer Text Messaging Terms & Conditions template. View the PDF.
View the PDF. For more information about worker classification, visit the DOL website.
Prepared January 2019
This memorandum is not intended to provide specific advice about individual legal, business, or other questions. It was prepared solely as a guide, and is not a recommendation that a particular course of action be followed. If specific legal or other expert advice is required or desired, the services of an appropriate, competent professional, such as an attorney, should be sought.
Title III of the Americans with Disabilities Act of 1990 (ADA) requires any private entity that owns, leases or operates a “place of public accommodation” to provide accessibility for disabled individuals. Although the ADA does not expressly address the internet, which barely existed at the time of its enactment, most courts have recognized that its protections apply to websites. In 2018 alone, plaintiffs filed more than a thousand ADA website accessibility lawsuits against a variety of businesses.
1. Do ADA website accessibility requirements apply to insurance agencies?
Title III applies to twelve different categories of places of public accommodation,” which is defined to include insurance offices” among other service establishments. While plaintiffs have generally targeted major retailers, restaurants, and hotel groups as defendants, insurance offices are also included within the ADA’s statutory categories of public places. Indeed, there has been at least one federal class action suit for alleged website accessibility deficiencies filed against an Ohio-based insurance carrier.
2. Does the ADA apply even if my business does not sell anything on its website?
Federal courts, including in the Third, Sixth, Ninth and Eleventh Circuits, have found that website accessibility may still be required if there is a sufficient nexus” or connection with physical offices that do make sales. Additionally, Title I of the ADA prohibits discrimination in the job application process such that online job listings and applications may also create potential exposure. Based on the direction of this legal precedent, it is prudent to err on the side of ensuring one’s website is accessible to disabled individuals.
3. How do companies ensure their websites are ADA compliant?
There are no federal guidelines or clear guidance on how to ensure compliance and accessibility. The World Wide Web Consortium’s (W3C) Web Content Accessibility Guidelines (WCAG) 2.0, however, is recognized as a generally accepted industry standard. Agencies may wish to seek a compliance audit with a reputable vendor to determine how their websites measure up against the WCAG 2.0 and ways to address any issues.
- Lack of formal regulations does not excuse non-compliance with existing laws.
- Look to W3C’s Web Content Accessibility Guidelines (WCAG) 2.0 for guidance for websites, mobile and digital.
- In general, although W3C has issued WCAG 2.1, courts generally look to 2.0 as the standard as of the date of this FAQ.
- More WCAG background can be found HERE.
Most businesses look to outside vendors to ensure their websites are accessible. One of the first steps is undertaking an ADA compliance audit to identify any issue in the website’s layout and code. Some common accessibility issues that are addressed include:
- Fonts, styles and backgrounds that make it difficult for certain users to read content due to size or insufficient contrast.
- Missing alternative text or alt tags” that allow automated screen readers to describe visual elements on a website.
- Inadequate labeling of inputs on fillable forms and fields, such as on a checkout page.
- For additional insight, please also see IA Magazine article, Is Your Agency at Risk for a Website Accessibility Lawsuit?” (Dec. 12, 2017).
Please note that providing a comprehensive checklist of items goes far beyond this memorandum. Addressing the issues identified above does not ensure a website is fully ADA compliant.
Additionally, a telephone operating service could also provide another route to compliance. The Department of Justice has stated that covered government entities may comply with the ADA’s requirement for access by providing an accessible alternative, such as a staffed telephone line, for individuals to access the information, goods, and services of their Web site.” See 75 Fed. Reg. 43460-01 (July 26, 2010). While such services could provide a defense to liability, courts may still examine the record to determine if the service was an adequate alternative and if contact information was supplied in an accessible format on the website.
4. Is my website compliant if I hired a vendor to develop it?
Not necessarily. Many website developers now attempt to address accessibility and may provide solutions, but this is still an emerging issue. Also, agencies may not necessarily be protected by indemnification or warranty provisions, to the extent they exist in their vendor contracts.
5. Other Considerations Vendors, Liability Coverage and State Laws
There are also several important caveats with respect to relying on vendors for ADA compliance generally. First, to the extent possible, agencies should seek indemnification protections from their vendors for third-party accessibility claims. A trend is developing in the law, however, that may render such indemnification clauses unenforceable based on a view that ADA compliance obligations are nondelegable. Second, agencies should consider whether they have insurance coverage for accessibility discrimination claims. While some Employment Practices Liability Insurance (EPLI) polices may cover ADA lawsuits, coverage remains a fact-specific inquiry and could implicate exclusions, e.g., for claims based on discrimination. Some commentators have also suggested exploring coverage under media liability or cyber insurance policies.
It is also important for agencies to consider not only liability exposure under the ADA, but also any state-specific laws or regulations that may be implicated, such as the California Disabled Persons Act and Unruh Act. To date, the vast majority of suits have been filed in New York, California, Florida and Pennsylvania. Given the exponential increase in filings over the past few years, businesses operating in any jurisdiction should review their website’s accessibility sooner than later.
6. How important is it to make my website accessible?
The number of ADA website accessibility lawsuits is likely to continue to increase in the future. Additionally, one in seven individuals in the U.S. has a disability, including more than 7.3 million people who are blind or have a visual impairment. Thus, not only does addressing website accessibility help limit legal exposure, it could also help agencies ensure they are serving more customers.
Any questions regarding this memorandum should be directed to Ron Berg, Scott Kneeland or Eric Lipton.
For a PDF of this document, please click here.
