Around much of the country retail stores and small businesses are struggling with how to reopen, or carry on operations online, consistent with public health recommendations on social distancing and protection of customers and workers. And as they do they find their task complicated in many ways by the requirements of the Americans With Disabilities Act (ADA) and related state laws. So I conclude from an advice column by Minh Vu and John Egan of the law firm Seyfarth Shaw. Some questions:
* Can you make customers wait outside, and if so how? Under one format commonly approved for reopening, stores must close all but one entrance and have someone watch that entrance to make sure the number of customers does not exceed a given capacity. Once the maximum is reached, customers waiting for admittance need to stand outside in distanced lines. Unfortunately, under the ADA, if only one of multiple entrances is accessible, that one must be used, even if it’s hard to watch, isn’t good for spacing people out, or is exposed to the rain. “Customers with physical disabilities who cannot stand for long periods may ask to go to the front of the line as a reasonable modification. Businesses may be reluctant to allow this as the claimed disability may not be obvious and the request may be fraudulent.”
* Can you take customers’ temperatures before letting them in? Some big U.S. employers already use non‐contact forehead temperature guns to check arriving employees for fever, and in places like Singapore such methods are also common for customers entering stores. Although the devices have been criticized as unreliable and they don’t catch everyone who’s contagious, they may improve the odds of avoiding in‐store spread of the novel coronavirus. But the ADA exposes you to legal risk if you use them:
Title III of the ADA does not allow public accommodations to impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.
You might try to take refuge in one of two exceptions, one that excludes from relevant protection someone who “poses a direct threat to the health or safety of others,” and another that permits “legitimate safety requirements that are necessary for safe operation.” The “direct threat” exception, however, requires “an individualized inquiry into whether a specific person poses a direct threat” and courts have been very stringent with businesses that try to use it. They’ve also been strict with the “necessary for safe operation” defense. Do you think you might get sued on the grounds that forehead guns can’t really be a requirement of safe use if some of your competitors aren’t using them? Yes, you just might.
* What kind of seating will you leave in place? To reflect capacity constraints, many sit‐down businesses such as restaurants find it best to remove a portion of their tables and seating. Careful about this reshuffling, or it could get legally expensive once you find that you no longer have the required proportion of seating with “a work surface that is between 28” and 34” above the ground, with clear space underneath that is at least 27” high, 17” deep, and 30” wide.”
* How do you move service online? This will be the biggest headache of all for countless small operators who have moved personal services online — tutors, coaches, counselors of all sorts. For more than 20 years now Congress has determinedly refused to clarify when and how online services must provide web accessibility enabling blind, deaf, and fine‐motor‐challenged computer users to access all the same services as others. Freelance private lawyers have already sued many thousands of businesses both large and small over alleged web accessibility violations — it takes just one cooperative client to launch a hundred suits or more — and settlements in the thousands or even tens of thousands of dollars are common. Note one problem here with a law that is enforced, by design, by private lawsuits: no official regulator can lift the requirements to reflect the COVID-19 emergency, as is often possible with, say, trucking or occupational‐licensure rules. Maybe one local ADA lawyer will decide to be reasonable and not sue over a website hastily thrown together in March by a small business trying to keep some revenue coming in during shelter in place. That’s no reason a second lawyer has to hold back.
We’ve covered ADA compliance headaches in many earlier posts (some links in this post). In March, we noted how disabled‐schooling statutes were complicating the effort to move K-12 education online in response to the pandemic.
This article by Walter Olson originally appeared in the CATO at Liberty blog in 2020. Image: Reuters.