ADA – Dickinson Law's Inside Entrepreneurship Law Blog

By: Bryan Gogg

Today I will address how to best accommodate customers with different types of disabilities. I will be taking into consideration areas in which there is clear guidance from the government, as well as areas in which there is only guidance from individuals with disabilities themselves.

The Law and You

Most likely your small business has to be Americans with Disabilities Act (ADA) compliant with Title III, which covers who you serve, and possibly with Title I, which covers who you hire (which I do not plan to go into detail about here). Title III covers, “any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” This language has been read to cover everything except some private clubs and religious institutions.

However, even if you don’t have to comply with the ADA, you should still want to. There are millions of people in America, and a good percentage of people in your area, with disabilities. These people with disabilities go shopping just like everyone else. Thus, by making your place of business and your business website accessible, you will be increasing your customer pool a great deal.

The Place of Business

ADA guidelines, last released in 2010, cover several ways to easily make your business more disability-friendly. These primarily address physical disabilities, deafness, and blindness. These don’t include some other disabilities such as autism, but I will speak more about that later.

One of the simplest things to do is to go around your place of business and imagine what it would be like for someone in a wheelchair to get around your business. Are all the aisles wide enough? Is there enough room to turn the corners? Can they reach everything they might want to buy? Is there a way for them to easily check out? If you have a bathroom, can they get into and out of it easily? If not, think of ways to make your place more accessible.

Other issues to consider have to do with other disabilities. Is there a way for people with certain disabilities to speak to you, such as with a pencil and paper or with communication devices? Does your business accommodate service dogs? Do you have enough handicapped-accessible parking spots (generally the rule is one accessible parking spot for every 25 total parking spots)? These are the sorts of questions you should ask when trying to make your place of business ADA compliant. More suggestions can be found here.

Website and ADA

When it comes to business websites, the law is messy, to say the least. Some courts have said that a website needs to be attached to an actual business, some courts have said all websites count, some courts have yet to rule on this, and of course, the Supreme Court has yet to address it at all. While the government did release some guidelines, these are only guidelines state and local governments must follow, and they are more than a decade old, so not that useful to a business owner like yourself.

Instead, what has generally become the accepted standard for private businesses is the Web Content Accessibility Guidelines (WCAG). These guidelines were created by a private consortium but have generally been recommended by courts in settlements about websites, and therefore are likely what you should follow when developing your own website.

There are some simple things you can do to make sure you are meeting these guidelines. For one, if you have pictures on your website, make sure to describe what the picture is conveying in the text below (text to speech software used by those with visual problems can translate the text but not the picture). Another example is not having audio play for too long as it can interfere with other software. More suggestions can be found here.

What ADA Does Not Address

One thing that ADA guidelines fail to cover (which I hope it will cover soon), that I feel is important to cover here, is accommodating people with autism and other sensory disabilities. Autism affects millions of children and adults here in America today. Those are millions of potential customers that all need things too. Autistic people need stores to be mindful of sensory issues. Loud sounds, smells, crowds, etc., will all make autistic people not want to visit your store.

For some stores, that might be hard to manage. If for example, you run a store that sells coffee, you might have a hard time running a store that does not lead to sensory overload. However, many stores can manage these issues by just having less clutter, sensory hours (one hour a week where you limit customers), not having lights so bright, less overloading websites, and other small things. Look at your business and see if there is anything you can do to help. In addition to that, if there is no way to avoid sensory overload in your store, having a way for people to not have to enter your store such as curbside shopping, might be a good idea.

Below is a good example of what becoming overstimulated is often like, while this involves a child, adults can and often do experience much of the same thing (even if they have developed coping strategies over the years):

This post has been reproduced with the author’s permission. It was originally authored on March 29, 2021, and can be found here.

Sources:

https://www.ada.gov/smbusgd.pdf

The Muddy Waters of ADA Website Compliance May Become Less Murky in 2019

Photo Sources:

https://www.ada.gov/business/retail_access.htm

https://www.aruma.com.au/about-us/blog/6-facts-about-sensory-hypersensitivity

Video Sources:

https://www.youtube.com/watch?v=aPknwW8mPAM

By: Mitchell Snyder

As the COVID-19 pandemic continues, many businesses are looking to the future and making plans to reopen and welcome employees back to work. The process of reopening will present both logistical and legal questions as businesses put in place procedures to ensure the safety of their employees. To help in this endeavor, we have compiled a list of precautions to consider including in your business reopening plan.

employee questionnaires

Employers should consider requiring employees to complete a questionnaire upon returning to work. This questionnaire will seek to determine whether the employee has recently tested positive for COVID-19, recently experienced any COVID-19 symptoms, or believes they have been exposed to someone who has tested positive, and/or has any other reason to believe that they may have been exposed to the virus. This information allows the employer to make an informed decision on whether to allow the individual to return to work while reassuring their employees that their workplace is safe.

The Centers for Diseases Control and Prevention (CDC) recommends focusing questions on the following symptoms:

Fever or feeling feverish (chills, sweating)
New cough
Difficulty breathing
Sore throat
Muscle aches or body aches
Vomiting or diarrhea
New loss of taste or smell

Some employers may be concerned about whether they can legally require employees to disclose this kind of medical information. The Americans with Disabilities Act (ADA) allows such questionnaires when the employer reasonably believes that an employee will pose a “direct threat” due to their medical condition. In the case of COVID-19, the Equal Employment Opportunity Commission (EEOC) has determined that currently, COVID-19 qualifies as a “direct threat.”

It is important to note that the ADA requires all medical information collected be maintained confidentially and stored in a separate medical file from the employee’s personnel file. Therefore, prior to implementing a questionnaire, employers should make plans for document collection and storage with their human resources department.

Lastly, questionnaires will only be permissible so long as COVID-19 qualified as a “direct threat.” Therefore, employers should continue to monitor the latest updates from the CDC, local health departments, and the EEOC to determine whether they can continue to require questionnaires.

temperature screening of employees

Fever is a commonly reported symptom of COVID-19. Therefore, employers may want to conduct touchless temperature checks before allowing employees to enter the workplace. Similar to questionnaires, the ADA allows medical examinations of employees, such as temperature checks, when the medical condition in question qualifies as a “direct threat.”

To avoid the accusation of disparate treatment, employers should subject all employees to the same screening procedures. The Age Discrimination in Employment Act (ADEA) will not permit an employer to treat their employees differently based on age. (For more information on how to ensure compliance with ADEA during COVID-19, please click here.) Additionally, it is highly recommended that the screening be conducted by either a medical professional or a member of human resources in order to ensure confidentiality.

And note: If an employer keeps records of the information collected, those records might qualify as medical records. If this is the case, the employer would be required to retain these records for the duration of each worker’s employment plus 30 years and follow confidentiality requirements.

Lastly, like with questionnaires, employers should monitor the CDC, local health departments, and EEOC to determine whether they may continue to conduct touchless temperature checks.

requiring personal protective equipment (ppe)

Employers should consider providing employees with PPE, such as masks and gloves, for use while in the workplace. The use of PPE has been proven to dramatically decrease the risk of infection from person to person. CDC Director Dr. Robert R. Redfield has explained, “Cloth face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus.” Currently, in Pennsylvania individuals are required to wear mask when in public when they are unable to maintain a social distance of 6 feet.

It’s important to note that masks are not the only one form of PPE. Employers should consider providing the following PPE for employee use:

Masks
Face shields
Hand sanitizer
Gloves
Cleaning supplies and disinfectants

The high demand for PPE can make it difficult to find. Luckily, the Pennsylvania Department of Community and Economic Development compiled a list of PPE manufacturers and suppliers located in Pennsylvania to assist with your search.

social distancing in the workplace

Employers should consider ways to increase social distancing in the workplace. The Center for Disease Control (CDC) has published recommended social distancing strategies for businesses. They include:

Implementing flexible work hours
Increasing physical space between employee’s workstations
Increasing physical space between employees and customers
Implementing flexible meeting and travel options
Replacing in-person meetings with virtual ones
Allowing employees to telework if they are able
Delivering services remotely via phone, video, or the internet
Delivering products through curbside pick-up or delivery

What this looks like will depend greatly on the nature of the employer’s business, its size, and where they are located in the country. Social distancing measures could also include constructing physical barriers between employees, eliminating shared workspace, moving employee’s workspaces to allow for better distancing, and adopting policies limiting usage of shared spaces or utilities such as kitchens or elevators.

The Occupational Safety and Health Administration (OSHA) has provided recommendations for implementing social distancing requirements in the workplace. They include:

Marking six-foot distances with floor tape in areas where lines form
Posting signage reminding workers, customers, and visitors to maintain at least six feet between one another
Posting directional signs in hallways/corridors where the width restricts movement and limits social distancing
Move or reposition workstations to create more distance and install plexiglass partitions

Lastly, local governments have adopted differing requirements for social distancing in the workplace. As more becomes known about the transmission of COVID-19, guidelines may change. Therefore, employers should closely monitor state and local orders to ensure compliance.

Business safety signs

In Pennsylvania you are required to post “COVID-19 Safety Procedures for Businesses” signs near all public entrances and in all employee common areas. These signs should be placed in locations where they are easy to spot. The Pennsylvania Governor’s Office provides printable PDFs of these signs at the following links:

additional recommended precautions

Employers can take additional steps to ensure their workplace is as safe as possible. These can include, but are not limited to:

Creating a documented reopening plan available to your employees outlining new procedures
Providing hand sanitizer with at least 60% alcohol for employee use in the office
Routinely disinfecting frequently touched surfaces
Limiting the use of shared office utilities and workspaces
Placing signs around the office encouraging social distancing
Requiring employees who are sick to stay home
Providing educational material about best hygiene practices outlined by the CDC

Some states have released templates for reopening plans outlining what is required in that specific jurisdiction. While Pennsylvania has not yet provided a template, you can consult the New York State reopening plan template when drafting your plan. (Employers should check to see if a template is now available in Pennsylvania after the publication of this post.)

CDC “RESUMING BUSINESS TOOLKIT”

The CDC has created a toolkit for employers as they begin reopening their businesses. It includes a highly detailed “Restart Readiness Checklist” designed to help make returning to work as safe as possible. You should consult this checklist to ensure your reopening plan is following existing CDC requirements.

consult a lawyer

Lastly, if you have any questions you should consult a lawyer on your business reopening plan to ensure it is compliant with all federal, state, and local requirements.

Mitch Snyder, at the time of this post, is a rising second-year law student at Penn State Dickinson Law. He graduated from Dickinson College where he studied Economics and Law & Policy. Currently, Mitch is pursuing certificates in both Civil and Criminal Litigation. He is an Associate Editor of the Dickinson Law Review, President of the Criminal Law Society, and a co-coach of the Dickinson College Mock Trial Team. He can be contacted at mps6411@psu.edu.