ADA in the News February 5, 2021

Businesses Now Face ADA Risk Related to COVID-19 Mandatory Employee Mask-Wearing Policies

A class action lawsuit filed in September 2020 against Nike alleging that its policy requiring retail employees to wear Nike-branded, opaque masks discriminated against deaf and hard of hearing consumers under Title III of the Americans with Disabilities Act (“ADA”) deserves attention from retail banks and non-bank financial services companies with brick-and-mortar facilities open to the public. The case’s important takeaway is that compliance with COVID-19 safety guidance mandating masks can also create obligations to accommodate individuals with disabilities under the ADA and similar state laws.

The named plaintiff alleged that Nike’s policy discriminated against deaf and hard of hearing consumers because they cannot read the salesperson’s lips to communicate. Last week, the plaintiff filed an unopposed motion seeking approval of a settlement (currently pending court approval) under which Nike would be required to (i) provide guidance to its employees on how to properly accommodate deaf or hearing-impaired consumers; (ii) post notices in its California stores related to accommodations available for such individuals; (iii) provide its California employees with clear facemasks; and (iv) provide writing instruments for consumers who are deaf or hearing-impaired to communicate with sales staff, if needed. Nike would also be required to pay Bunn $5,000 as the named plaintiff and pay her attorney’s fees in the amount of $85,000.

Under Title III of the ADA, any place of “public accommodation” (which specifically includes banks) must make their goods, services and facilities accessible to individuals with disabilities, and - if needed - provide accommodations for such individuals upon request to ensure effective communication. Typically, requests for accommodation are made by individuals with disabilities and a business develops a customized solution for that individual, but the Nike case suggests that employees should be better trained to accommodate customers, including how to effectively communicate with deaf individuals while masks are mandated during the COVID-19 pandemic.

Retail banks and non-bank financial services companies with brick-and-mortar facilities open to the public may wish to consider implementing the steps Nike has agreed to take in the proposed settlement agreement as a way to mitigate risk. Although many financial institutions likely already provide ADA training to front-line staff (e.g., tellers) and pens/pencils to consumers who visit their facilities, institutions may want to consider enhancing ADA training, posting a notice in branch locations, and providing clear facemasks for employees. The Nike case may also have broader implications. For example, financial services companies that are not consumer-facing may need to consider additional accommodations for deaf/hearing-impaired employees in the workplace.


Sixth Circuit Extends Ban of Short Limit to ADA and ADEA Claims

The U.S. Court of Appeals for the Sixth Circuit, the appellate court responsible for the federal district courts of Michigan, Ohio, Kentucky, and Tennessee, recently made clear that claims asserted under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) cannot be subject to contractually shortened limitation periods. In Thompson v. Fresh Products, LLC, No. 20-3060 (January 15, 2021), the Sixth Circuit held that the statute of limitations for claims arising under the ADA and ADEA is a substantive right that cannot be waived by agreement of the parties. This decision was an extension of the Sixth Circuit’s 2019 decision in Logan v. MGM Grand Detroit Casino, which held that the statute of limitations for claims under Title VII of the Civil Rights Act of 1964 could not be shortened by agreement of the parties.


Subminimum Wage for Disabled Workers Called ‘Unjust’ in Discussions by Lawmakers

In what is being labeled a civil rights issue by advocates, lawmakers are considering ending the decades old practice of paying workers with a disability less than the state minimum wage.

Under the current system, the Department of Labor and Industries can allow employers to pay workers with disabilities wage less than the state minimum. To qualify, employers must describe how the disability negatively impacts earnings and what the proposed wage would be.

There is no set floor for how low the wages can be, as long as employers get approval from the U.S Department of Labor to pay less than the federal minimum wage of $7.25 per hour.

This practice predates by more than three decades the Americans with Disabilities Act, which prohibits discrimination based on disability.

“We're back at this work again this year because it's a civil rights issue to pay people with disabilities less than minimum wage,” said Sen. Emily Randall, D-Bremerton, at a public hearing of the bill on Feb. 1. Randall introduced a similar bill in 2019 that never got out of committee.

Seattle eliminated subminimum wage for workers with disabilities in 2018, and in 2020 Washington State Agencies did the same.

“Continuing to allow subminimum wage, lets employers treat folks with disabilities as less than,” Randall said. “That is simply unjust and it hurts everyone in our communities. It hurts our economy, and it marginalizes our neighbors.”


CBP to Comply with Presidential Executive Order Requiring Face Masks at Ports of Entry

WASHINGTON-Effective Feb. 2, U.S. Customs and Border Protection (CBP) is enforcing the requirement that travelers wear face masks at all air, land and sea ports of entry in the United States in accordance with President Biden’s Executive Order on Promoting COVID-19 Safety in Domestic and International Travel and the Centers for Disease Control and Prevention (CDC) Order Regarding the Requirement for Persons to Wear Masks While on Public Conveyances and at Transportation Hubs.

The new requirement applies to all persons older than 2 years of age. Per CDC guidelines:

  • A properly worn mask completely covers the nose and mouth.
  • Cloth masks should be made with two or more layers of a breathable fabric that is tightly woven (i.e., fabrics that do not let light pass through when held up to a light source).
  • Masks should be secured to the head with ties, ear loops, or elastic bands that go behind the head. If gaiters are worn, they should have two layers of fabric or be folded to make two layers.
  • Masks should fit snugly but comfortably against the side of the face.
  • Masks should be a solid piece of material without slits, exhalation valves, or punctures.

With limited exceptions, travelers must wear a face mask while physically present at a U.S. air, land, or sea port of entry. CBP Officers will require travelers to temporarily lower their mask during the inspection process to verify their identity.

The mask requirement does not apply to persons with disabilities who cannot wear, or cannot safely wear, a mask due to a disability as defined by the Americans with Disabilities Act. The mask requirement also does not apply to individuals for whom wearing a mask would create a risk to workplace health, safety, or job duty.

Individuals on private conveyances such as personal vehicles are not required to wear a mask while driving, but must don a mask once they enter an air, land, or sea port facility. Drivers of commercial vehicles and trucks are also not required to wear a mask while driving if the driver is the sole occupant of the vehicle.

The mask requirement will remain in effect until further notice. Failure to comply with the mask requirement can result in denial of transport or other civil/criminal penalties under 18 U.S.C. 3559, 3571.

CBP urges all travelers to closely follow the CDC’s COVID-19 travel guidelines.

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