Avoiding Coronavirus Discrimination Claims in Retail and Hospitality
On the 30th anniversary of its passage, the Americans with Disabilities Act (ADA) deserves recognition for its continued viability and adaptability in response to contemporary problems and technological change. As the retail and hospitality industries reopen and expand operations during the COVID-19 pandemic, an important component of those plans is the potential issues affecting persons with disabilities. Governmental health-and-safety requirements and recommendations implemented in response to the COVID-19 pandemic may disproportionately affect specific communities and groups, including persons with disabilities.
The Americans with Disabilities Act (ADA) is a civil rights law prohibiting discrimination, exclusion, and unequal treatment against individuals with disabilities. The ADA covers private employers and businesses that are generally open to the public (called “public accommodations”), including retail, hospitality, and restaurant businesses. In particular, Title I of the ADA requires employers to provide reasonable accommodations to their employees with disabilities, as long as those accommodations do not create undue hardships; and Title III requires public accommodations to provide reasonable modifications, remove barriers, and take other steps to ensure that individuals with disabilities are not excluded, denied service or otherwise treated differently than other individuals.
States across the country are implementing multi-phased COVID-19 reopening plans for retailers, restaurants, hotels, and other businesses. Federal agencies also have issued guidance and recommendations about COVID-19 health-and-safety issues affecting employees and the general public. As retail, hospitality, restaurants, and other businesses reopen and expand their operations, consideration of ADA requirements and obligations is necessary to avoid compliance issues and potential liability. Some of the significant ADA compliance issues raised by COVID-19 reopening plans and recommendations are as follows:
- Face Masks and Coverings. Based on guidance from the Centers for Disease Control and Prevention (CDC) and local authorities, individuals are encouraged, and in some cases required, to wear face coverings while in public and the workplace. This may pose challenges for individuals with hearing impairments because it renders communication more difficult, including both transmitting and receiving visual communication such as facial expressions. With facial protection mandatory in many contexts, this creates challenges for businesses and employers. Clear and appropriate signage may reduce the need for verbal communications. In addition, there are several face-mask and face-shield products with transparent sections, which better facilitate visual communication. More difficult issues will arise when an individual has a disability for which he or she cannot wear a face mask or covering. These situations will be highly fact-specific and require businesses and employers to weigh the request against the potential risk. Those legitimate requests must be separated from fraudulent ADA claims: the Department of Justice and Federal Trade Commission recently issued alerts about fake COVID-19 exemption cards. Those fraudulent materials are not issued or condoned by any government agencies
- Accessibility and Physical Barriers. The ADA contains detailed accessibility requirements for buildings and facilities. Reopening plans often require employers and public accommodations to reconfigure their physical spaces, including entrances, exits, paths of travel, service counters, restrooms, parking areas, elevators, and other common spaces to account for social distancing and hygiene requirements. These plans often include new processes and procedures for entering, exiting, and traveling through interior spaces. Moreover, many restaurants and other businesses are creating new outdoor and open-air spaces for guests. Any potential changes or alterations to an interior environment or outdoor space may be subject to the ADA’s strict accessibility requirements.
- Websites and e-Commerce. By most measures, COVID-19 has significantly accelerated e-commerce growth. At the same time, retail, hospitality, and other businesses are frequently targeted with accessibility lawsuits in federal and state courts concerning their websites and mobile applications. With the increase in e-commerce and online food ordering, these types of lawsuits are unlikely to subside. Businesses that implement proactive and preventative accessibility measures with their websites and mobile applications may be able to minimize their litigation exposure while providing more user-friendly online content and e-commerce.
- Medical and Temperature Screening. During the COVID-19 pandemic, businesses and employers may take reasonable measures to ensure safety based on actual risks and direct threats. These measures may include medical screenings of employees and guests through questionnaires and contactless temperature taking. These types of screening measures may be required under state and local guidance, and their applicability will vary depending on the jurisdiction and type of business. Nonetheless, any type of screening process must be implemented and conducted in a non-discriminatory and limited manner to maintain privacy and avoid potential ADA claims.
- Reasonable Accommodations. A reasonable accommodation is assistance or changes to a position or workplace which allows an employee to perform the job despite having a disability. Under the ADA, employers are required to provide reasonable accommodations to qualified employees with disabilities, unless doing so would pose an undue hardship. With some offices, retail, and hospitality facilities reopening and expanding operations, employers should expect to see an increase in requests for reasonable accommodations by individuals who are concerned about COVID-19. Many of these requests focus efforts on continuing remote work and minimizing interaction with the public. Although COVID-19 and any generalized concerns about the disease are not considered “disabilities,” some medical conditions and effects associated with COVID-19 may qualify. As with any ordinary request for a reasonable accommodation, employers will engage in an interactive process with the employee to determine whether and to what extent accommodations are appropriate.
As the COVID-19 pandemic continues to evolve, businesses and employers will face new challenges and uncertainties as they reopen and expand operations. If you have specific questions or need additional information about balancing reopening procedures with accessibility and other ADA requirements, please visit our Accessibility page or contact your Goulston & Storrs attorney.