Expert Analysis: Reopening Businesses Face Thorny Customer-Facing ADA Issues

COVID-19 has had a profound impact on the ways in which we use (or, more accurately, avoid) public accommodations spaces in recent months.

As businesses start to reopen in various parts of the country, they are implementing social distancing and other mitigation measures aimed to curb the spread of the virus among their employees and customers. Businesses need to consider how these new measures impact customers with disabilities and adjust them accordingly.

• Screening Customers for Fever
Can businesses use temperature scanners or thermometers to screen customers for COVID-19 and refuse admission if they have a fever? 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. 

However, it also has a specific provision that allows public accommodations to “impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

In cases where public accommodations have relied on the “legitimate safety requirement” defense, courts have carefully scrutinized the evidence that the businesses used to develop the eligibility criteria.  Thus, businesses that plan on screening customers for fever need to carefully document the case for the eligibility criteria and be prepared to defend them.

The ADA also does not “require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.”  

Unlike the “legitimate safety requirement” defense, the “direct threat” defense requires businesses to conduct an individualized inquiry into whether a specific person poses a direct threat.  Courts tend to be very stringent in their analysis of what constitutes a direct threat, so businesses again need to be very careful about excluding people with disabilities using this rationale.

• Enforcing Social Distancing Guidelines
Businesses are enforcing social distancing guidelines with a variety of measures, including changes to points of entry, creating queue lines, and requiring customers to wait outside to limit the number of people inside a facility. These measures can create a number of ADA compliance issues, including the following.

Accessible Routes. The ADA requires the maintenance of accessible routes so that people who use wheelchairs and other mobility devices have access to public accommodations.  Thus, if a facility has two entrances, and only one is accessible, the accessible one must remain open.

If a business creates queue lines for entry, those lines must be 36” wide from the ground up, and wider if there is a U-turn. If there is not enough space for the regular queue line to maintain a 36” width, an alternative is to provide a separate shorter accessible line for people who use mobility devices. This line should be marked with an ISA.

Waiting Customers. The ADA requires reasonable modifications of normal policies, practices, and procedures, where necessary to ensure access for individuals with disabilities.  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. Allowing those who have a disability parking placard to go to the head of the line would be one possibility, combined with the provision of small folding chairs or other seating for those who need it but don’t have a placard.

• Face Masks and Lip Reading
Many customers who are deaf or hard of hearing rely on lip reading to communicate. Some have complained that they cannot do so when employees are wearing face masks or coverings. Thus, businesses should consider alternative means of communication. This might include providing a sanitized white board and pens to both the customer or employee to exchange written communications.  

The ADA allows for flexibility in providing an appropriate auxiliary aid which depends on the nature, complexity, and context of the specific communication and individual’s preferred method of communication.  For example, providing real-time captioning or an American Sign Language (ASL) interpreter is not required for simple retail or restaurant communications. However, businesses should explore other potential solutions that will not spread the virus, but are also practical and effective in their particular setting.

• Assisting Customers with Disabilities While Social Distancing
The ADA requires employees of public accommodations to provide assistance to customers with disabilities for a variety of tasks, such as retrieving out of reach products, reading written product or other information to those with sight disabilities, and guiding those with sight disabilities to locations within a facility.  This obligation has not changed, and most of these tasks can still be performed while maintaining a safe distance.  
However, employees should be reminded of their obligation to provide assistance while maintaining distancing measures.  For example, instead of offering a blind person an arm to guide the person to a destination, verbal wayfinding directions can be used instead.

• Accessible Seating
The ADA requires public accommodations that offer work or dining surfaces to provide accessible work or dining surfaces.  Specifically, five percent of seats at such surfaces must have 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.  

To ensure there is enough space between tables, businesses may remove tables from their dining rooms. In so doing, they must ensure that the required number of accessible tables remain in service.

• Accessible Digital Alternatives
Even as stay-at-home orders are lifted, many customers will still prefer shopping online. This also applies to customers with visual, hearing, or physical disabilities who rely on assistive technologies like screen readers or captioning on videos to access the internet. Businesses should review the accessibility of their websites and mobile apps, and ensure they have a manner and means to provide assistance to patrons with disabilities who encounter difficulties using the website or mobile app.

Unlike the U.S. Equal Employment Opportunity Commission (EEOC) which has issued guidance to employers about how to protect employees in the workplace from COVID-19 in compliance with non-discrimination laws, the Department of Justice (DOJ) has not issued any guidance on how public accommodations should apply social distancing and safety measures while maintaining compliance with Title III of the ADA. For that reason, we strongly recommend that businesses consult with experienced counsel in developing and implementing plans for reopening that address the needs and health of their employees and customers, including those with disabilities.

Minh N. Vu is chair of Seyfarth’s ADA Title III Specialty Team, and a partner in the firm’s Washington, D.C., office. John W. Egan s a partner in the firm’s New York office and a member of Seyfarth's ADA Title III & Public Access team. (The article was edited by Kristina Launey, a partner in the firm.)