Law360 (July 13, 2020, 3:29 PM EDT) --
And if the long and difficult spring wasn't trying enough, businesses now face yet another challenge — balancing maintaining the safety of employees and patrons against complying with Title III of the ADA, and applicable state and local laws, which can significantly vary depending on the jurisdiction.
While in many ways the world keeps changing, some things never do — namely, the plaintiffs bar's continued pursuit of ADA lawsuits involving both brick-and-mortar locations and digital technology. Moreover, the COVID-19 pandemic has also brought new issues to the forefront — including the filing of some lawsuits alleging novel theories.
Below, we round up some of the many accessibility issues that businesses should keep in mind as they navigate through this new era in hopes of successfully reopening in the new normal.
With businesses increasingly relying on technology, lawsuits regarding accessible technology begin to surge again.
Through personal experience, most businesses are all too aware of the seemingly endless stream of lawsuits filed against companies for their alleged failure to provide websites that are accessible to individuals who are blind/have low vision or are deaf/hard of hearing. Although the number of federal lawsuits has arguably plateaued to some extent, the number of cases pursued in California state court, and through private demand letters, most certainly has not.
As plaintiffs counsel now argue that in this time of COVID-19 website accessibility is more urgent than ever, companies' risks of website accessibility lawsuits are greater than ever.
This risk is only heightened — particularly for those operating in California — following a slew of recent decisions, including one from the California Court of Appeals just last month in Martinez v. San Diego County Credit Union reversing a trial court's decision which found that a credit union's website, which allowed users to find its physical banking location, was not a place of public accommodation.
In its decision, the appellate court reaffirmed that under California state law — the Unruh Civil Rights Act — where a business has a nexus between its website and a physical place of public accommodation, it is required to make the website accessible to individuals who are blind or have low vision, which is consistent with the position taken by California federal courts when considering the same issue under Title III.
The obligation to provide accessible technology to individuals with disabilities goes beyond website accessibility. For example:
- Businesses must provide accessibility when relying upon the use of touchscreen devices. Depending upon the purpose of the device — e.g., for cashless methods of payment — this may involve substantial conformance with the Web Content Accessibility Guidelines 2.1 at Levels A and AA, but it might also involve providing audio-enabled guidance, braille/tactile keypads and/or swipe gesture-enabled operations, as well as mounting such devices at appropriate heights, within necessary reach ranges, and with sufficient clear floor space.
- If attempting to utilize touch-free methods for opening doors, businesses need to do so in a way that maintains access for individuals using mobility devices, such as wheelchairs — e.g., via the use of motion-sensor devices.
- For individuals who are deaf or hard of hearing, businesses should provide captioning or transcripts for videos, and consider policies for methods of providing access to captioning for older videos.
Lawsuits against businesses that require patrons to wear masks are a potentially ripe new area for litigation.
With an increasing number of jurisdictions now mandating that individuals wear face masks in public to help curb the spread of COVID-19, many businesses are also requiring customers to cover their faces as a safety measure when entering their physical locations for the same reason.
While many businesses generally can, and currently do, maintain facially neutral policies of refusing service to a customer who refuses to wear a face mask, businesses must also consider that there may be situations where a customer cannot wear a mask due to a legitimate health reason, such as a respiratory condition that does not allow them to have their breathing restricted.
In such an instance, we initially advised that the business should attempt to accommodate that customer in an alternative manner that would continue to protect its employees and other patrons, while also providing the customer with service — for example, providing curbside pickup, no-contact delivery or assistance via online store services.
However, the ability to establish uniform companywide policies for handling such situations has been made more challenging because many of the executive orders recently issued by state and local governments requiring masks in public accommodations often differ on how businesses should respond to individuals who cannot wear masks because of a disability or a medical condition.
As such, it is imperative that businesses be aware of the specific state and local rules in the jurisdictions in which they are operating that may create or limit their obligations, options or defenses if they deny service — and deviate from any baseline policies, as needed in specific jurisdictions. It is also more important than ever that staff working in these stores are trained regarding accessibility policies and proper sensitivity and etiquette so that they know how to respond when a customer says that they are unable to wear a mask, or require an accommodation.
The difficulties posed by these evolving obligations is clearly seen by some industrious plaintiffs counsel as ripe for litigation. In the last few months, we have begun to see lawsuits filed alleging that places of public accommodations have violated the ADA by refusing to accommodate customers with respiratory-related disabilities through the enforcement of a company policy requiring all shoppers to wear masks.
In these cases, the customers alleged that they are unable to wear masks due to an alleged disability — they walked into the store, an employee asked where their mask was, and when they responded that they could not wear one because of a medical condition, they were refused entry.
The plaintiffs assert that not only does this violate the ADA, but also state laws/guidance in those jurisdictions providing that businesses are required to allow individuals who cannot wear masks due to a medical condition to enter the premises, without the need to provide the business with documentation of their inability to wear a mask for medical reasons.
In a jurisdiction without such a restrictive mask order, a potential solution businesses may consider would be providing any patron who is unable to, or objects to, wearing a mask with alternative means of service — such as curbside pickup and free delivery.
Before assuming that this is sufficient to satisfy their obligations, however, businesses must be aware of the specific requirements of each jurisdiction in which they are operating, and the need to modify their baseline policies and practices accordingly in order to remain in compliance with state/local orders which may impose additional restrictions/obligations.
Be sure to provide effective communication to individuals who are deaf/hard of hearing where both parties must wear masks.
Under Title III, businesses have an obligation to provide auxiliary aids and services necessary to achieve effective communication for individuals with disabilities. Due to the current need for employees and patrons to wear masks, businesses must consider the need for alternative methods of achieving effective communication for individuals who are deaf or hard of hearing and ordinarily rely on lip reading.
In order to deal with such circumstances, businesses should consider providing disposable pens and pads, markers and dry-erase boards sanitized between every use, or methods of electronic communication, and disinfecting any shared devices between uses.
Social distancing will impact businesses' obligations under the 2010 standards.
Further complicating the already daunting task of planning to safely reopen in a world of social distancing is the need to do so while also abiding by the technical obligations set forth by Title III's 2010 ADA Standards for Accessible Design. The requirements set forth in the 2010 standards play an integral role in maintaining accessibility for individuals using mobility devices and who are blind.
Maintaining Accessible Routes, Dining Locations, Service/Sales Counters and Parking
As businesses, and particularly, retailers and restaurants, modify their facilities in order to enforce social distancing, it is essential that they keep in mind that the 2010 standards require them to provide individuals who use mobility devices with accessible routes throughout the location, along with necessary maneuvering clearances and clear floor space.
Accordingly, steps taken to enforce social distancing — for example, queue lines and the use of stanchions — must be taken in a way that preserves the necessary dimensions set forth by the 2010 standards and does not create improper protruding objects. Similarly, such steps cannot result in the creation of protruding objects that might harm a person who is blind without the provision of detectable warnings.
And to the extent extra signage may be added to help provide wayfinding or inform patrons of safety rules, such information must be communicated in an alternative accessible format for individuals who are blind.
As restaurants prepare to open new outdoor dining areas and/or return to some level of interior dining under social distancing restrictions, they must still take into account the 2010 standards' requirements for the number of accessible dining locations that must be provided in areas in which customers are eating or drinking, including at the bar, and further, that those accessible dining spaces must be dispersed around different seating areas and along tables of different sizes.
Separate and apart from accessible dining surfaces requirements, the 2010 standards impose requirements for accessible (lowered) sales and service counters. Accordingly, where businesses seek to impose social distancing requirements that could require the temporary elimination of points of sale stations to increase separation at line queues — for example, restaurants' takeout counters or retailers' checkout locations — they must continue to provide services at those accessible counters which comply with the 2010 standards.
Along the same lines, businesses that provide parking to their patrons and are temporarily reducing the amount of parking provided to maintain social distancing must still abide by the 2010 standards' requirements for the number and location of accessible parking spaces, as well as van-accessible parking spaces. This is another area in which some states have additional unique requirements that businesses need to be aware of.
Any business that requires employees and patrons to use elevators in order to reach its physical location, or parts of it, has likely examined how they can transport individuals to their locations safely and effectively while trying to maximize social distancing. Many have concluded that this requires limitations to the number of people who can use the elevators at any given time.
Such restrictive occupancy limits can have a significantly negative impact on wait times for patrons using mobility devices, who may have no choice but to use elevators as opposed to stairs. In these instances, businesses may wish to consider giving priority to patrons with mobility devices, and service animals, or designating an elevator at each bank as a priority bank for such purposes. Additionally, any occupancy restrictions must be sure to comply with the applicable 2010 standards.
Many things in this day and age remain ever-changing and uncertain, however, the prevalence of ADA obligations and the risks of accessibility lawsuits remain a constant.
As we approach the ADA's 30th anniversary, and businesses adjust to the new normal by continuing to develop and adopt unique safety protocols, it is essential that they continue to account for accessibility throughout their planning processes and prepare to address their obligations under Title III and its state/local counterparts to avoid high legal risk exposure.
Shira M. Blank and Joshua A. Stein are members at Epstein Becker Green.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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