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Ensure ADA compliance as part of reopening plans

Claims asserted under the Americans with Disabilities Act are a continual source of risk assessment and litigation for hospitality companies. Under the ADA and related state laws, companies that offer products and services to the public are required to ensure equal access to their locations by persons with disabilities. 

These companies are now faced with a new set of potential compliance hazards due to the current global health crisis. As communities and businesses begin to reopen in the midst of the COVID-19 pandemic, they are making many changes to their policies and procedures, as well as modifying their facilities to attempt to ensure the safety of their patrons. As they do so, companies should be mindful of the ADA. 

Brad J. Leimkuhler and Stacy M. Dominguez are associates in the business trial practice group of Sheppard, Mullin, Richter & Hampton, headquartered in Los Angeles.

While ADA claims can often be highly technical, the added wrinkle of a global pandemic and quickly changing state and local level guidance create the potential for companies to overlook the impact of these changes on their disabled patrons. 

The ADA generally provides a clear standard for particular physical elements, such as listing specific measurements for counter heights, operable parts and aisles. At the same time, it requires businesses to make modifications to policies and procedures to ensure that disabled guests have a like experience.

Left unanswered is how businesses should react when faced with a potentially conflicting mandate from the ADA and new health and safety rules issued in response to the public health crisis. How do companies encourage health and safety in a pandemic while also complying with the ADA?

Hotels must ensure that they are taking all their guests into account when they make modifications related to COVID-19. | Getty Images
Hotels must ensure that they are taking all their guests into account when they make modifications related to COVID-19. | Getty Images

Companies must remember that federal law such as the ADA preempts state and local mandates, presumably even those relating to a global pandemic. However, with court closures and mandates relating to COVID-19 varying from jurisdiction to jurisdiction, no interpretation of the merits of the claims or generally acceptable standards relating to ADA enforcement against local mandates have been developed. As a result, businesses should take care that any modifications to their facilities do not impede access for persons with disabilities. 

What are some important considerations? For instance, if a business is making modifications relating to cleanliness and reduction of transmission of COVID-19, it should consider individuals in wheelchairs who may have difficulty accessing hand sanitizer, wipes or gloves should they be available to the public. Similarly, plexiglass at checkout counters may create greater distance or obstruction between a patron in a wheelchair and the counter or a point-of-service. Finally, some public restrooms are closing a selection of stalls to maintain social distance. The lack of access to a handicap stall may result in litigation. 

As businesses are re-opening, they are modifying certain policies such as requiring all patrons to wear a face covering. There have been news reports that some people are claiming that this violates the ADA per se. This is not true. The ADA only protects persons with qualified disabilities. In addition, the ADA only requires businesses to make reasonable and necessary modifications to their policies.

The ADA does not require public accommodations to take actions that would pose a direct threat to the health or safety of others. However, this does not mean that a blanket “no mask, no entry” rule carries no risk or will be upheld. Certainly the adoption of such a “no exceptions” policy may very well exclude certain individuals from patronizing a public accommodation – even if it complies with local health and safety recommendations. As a result, the public accommodation may also need to consider further modifications – such as curbside service – that would still allow a disabled person access to the goods and services offered inside.

Businesses should also consider making exceptions to the policy for individuals who suffer from a disability that does not permit them to wear a mask. Under no circumstances should businesses demand “proof” of a person’s disability as a condition of entry. It is not clear how courts will view these new policies in the constantly changing landscape of the global pandemic. Plaintiffs are beginning to bring lawsuits making these allegations of discrimination in court.

Since lockdown began, several plaintiffs have filed policy-related complaints relating to mask policies. Specifically, individuals with a deviated septum, vertigo, skin conditions (i.e., eczema), and other illnesses that impact the individual’s ability to breathe contend that mask policies are inapplicable to them.

Similarly, individuals who are blind or have low vision may be unable to abide by one-way aisle rules without some form of physical detection markings, and individuals in wheelchairs or using other forms of assistance may be unable to conform with stair policies developed to reduce contact points on elevators.

Consider the government mandates on the issue, whether the company policy may treat a group of individuals differently than others, and who is enforcing that policy —employees or security companies may not be equipped to handle the enforcement of these rules.

The number of ADA lawsuits targeting places of public accommodation will only grow as businesses reopen and judges begin to deal with the questions of what a business should prioritize – an individual’s health or that individual’s access or enjoyment of public premises. 

Until some guidance is provided in each jurisdiction, it would be sensible for business to assess the accessibility of their public locations and policies relating to public safety and individuals with disabilities, and properly advising its employees and agents regarding both potential issues and enforcement. In doing so, not only will they be able to manage their exposure to ADA lawsuits, they also may be able to welcome more patrons into their stores who can purchase their goods and services after extended closures.

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