ADA in the News May 11, 2020

Settlement Agreement: 

·        City of San Clemente, California

·        Colorado Rush Soccer Club

Local strip mall property settles ADA allegations

The owners of a property known as A-S 76 on Highway 290 have settled allegations under Title III of the Americans with Disabilities Act (ADA) to remove barriers and greatly improve physical accessibility, announced U.S. Attorney Ryan K. Patrick.

The United States initiated an investigation into A-S 76 Hwy 290 Bingle L.P. as part of a compliance review of strip shopping centers after receiving a complaint regarding a similar property.  The investigation revealed that physical barriers existed at various locations in the parking lot and access points of the shopping center.

The settlement agreement requires the property owner to remedy all access barriers within six months.

Under the ADA, persons with disabilities shall be afforded the opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages or accommodations equal to that afforded to other individuals.  Title III mandates that no individual shall be discriminated against on the basis of a disability by any person who owns, leases or operates a place of public accommodation.

The Bingle Property is a place of public accommodation.  As such, the owner is subject to Title III requirements.

The United States Attorney is authorized to commence a civil action, when he believes discrimination exists, seeking full compliance with the ADA, including requiring the owners and operators of places of public accommodations to remedy the violations.

The owner denies the allegations that it violated the ADA, but agreed to remedy all the alleged violations the United States has identified.

ADA Implications: I Don’t Want To Wear A Mask….

During the COVID-19 pandemic we have seen multiple shifts in views by the public and employees.  Initially, the issue was what to do if an employee requested a face mask. 

However, businesses are now facing different questions:

Can you require employees to wear a face mask? 

Can you require customers or members of the public to wear a face mask when coming into your business?

What most do not realize is that both of these questions raise potential ADA issues.

EMPLOYEES – The short answer is, YES.  A business can require its employees to wear a face mask or covering and other personal protective equipment (PPE) as a workplace rule. In order to do so, the business would want to be able to show a legitimate business reason as to why the rule is in place. Under the current circumstances, requiring the use of a mask and PPE to address safety concerns related to the COVID-19 pandemic would likely be considered a legitimate business reason. In fact, some employers are being ordered to make it a requirement pursuant to local or state mandates.

However, what if an employee reports that he or she has a medical condition that makes it so he or she cannot wear a face mask or covering? This would then trigger the business’ obligation to engage in the ADA interactive process.

Motorized golf carts on Massachusetts courses now allowed amid coronavirus pandemic, but only for those who can properly show need

On Thursday, Massachusetts golf courses reopened with an outcry when governor Charlie Baker banned the use of all motorized carts -- a move that prevented disabled golfers from taking up the sport again.

Baker relaxed the extensive rules and restrictions a bit on Sunday to accommodate golfers who can’t walk long distances. According to the official Massachusetts website detailing coronavirus guidelines for golfers, motorized carts “may be permitted for any individual with a disability who is seeking a reasonable accommodation to ensure compliance with the Americans with Disabilities Act (ADA). A golfer who wants to use a cart should provide documentation or otherwise certify in writing to the golf course that he or she has a disability that requires the use of the cart."

EEOC Updates COVID-19 Guidance On “High-Risk” Employees Returning To Work

The Equal Employment Opportunity Commission (EEOC) has issued new guidance regarding “high-risk” employees returning to work during the COVID-19 pandemic. A revised Q&A document published on May 7, 2020, addresses the question of when an employer may bar an employee from the workplace because he or she is at higher risk of severe illness or even death from contracting COVID-19.
High-risk employees include people with underlying medical conditions, including chronic lung disease, asthma, heart conditions, severe obesity, diabetes, chronic kidney disease, liver disease, and conditions that cause a person to be immunocompromised. The EEOC previously clarified that the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to employees with such conditions who are returning to work.
The new guidance answers the question: What should an employer do if it knows that an employee has a high-risk condition and is concerned that returning to work will jeopardize his or her health, but the employee has not requested an accommodation? According to the EEOC, the employer is not required to take any action at all. An employer’s obligations under the ADA are not triggered until the employee requests an accommodation. However, there may be instances when the employer wants to exclude the employee from the workplace. The employer may be legitimately concerned about the employee’s health due to an underlying medical condition. Or, the employer may want to avoid liability if the employee becomes severely ill or dies as the result of contracting COVID-19 at work.
The new EEOC guidance states that in such a case, an employer cannot exclude the employee from coming to work unless the employee’s medical condition poses a “direct threat” to his or her health and the threat cannot be reduced by a reasonable accommodation. According to the EEOC, the ADA’s direct threat requirement is a “high standard.” An employer must show that the individual has a disability that poses a “significant risk of substantial harm” to his or her own health. Further, the employer must conduct an individualized assessment of the employee’s situation, considering factors such as the severity of the pandemic in the area, the employee’s health, his or her job duties, the likelihood that the employee will be exposed to the virus, and measures the employer is already taking to protect workers.
Even if an employer determines that an employee’s condition poses a direct threat to his or her own health, the employer still cannot exclude the employee from the workplace if there is a way to provide reasonable accommodation. The ADA requires an employer to consider whether there are accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to work. Examples of accommodations include protective gowns, masks, gloves, erecting physical barriers that provide separation between an employee and coworkers/the public, modification of work schedules, and moving the location of where the employee performs work if it provides more social distancing. An employer may only bar an employee from the workplace if, after going through all these steps, the employee poses a significant risk of substantial harm to himself or herself that cannot be reduced or eliminated by reasonable accommodation.

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