ADA rules requiring service animals to be admitted to any area open to the public still apply during the pandemic.
No DOJ Masking Exemptions
The DOJ does not provide exemptions from masking requirements, and any information indicating otherwise was not issued or endorsed by the DOJ.
Long COVID-19 and Disability
Long COVID-19 is not necessarily a disability under the ADA, though it can be if substantially limits one or more life activities.
Medical Facility Visitors
Hospitals and other medical facilities must allow nonpatient visitors to accompany patients with a disability as necessary for equal access to care.
Outdoor dining and retail spaces are subject to the same ADA accessibility rules as those that apply to indoor spaces.
On January 6, 2022, the Department of Justice (DOJ) issued answers to frequently asked questions (FAQs) about how the Americans with Disabilities Act (ADA) applies to businesses and other entities under certain circumstances related to the COVID-19 pandemic.
The new FAQs mainly focus on compliance with Titles II and III of the ADA. Title II applies to state and local governments, while Title II applies to businesses that are generally open to the public and that fall into one of 12 categories listed in the law. Among others, these include restaurants, movie theaters, schools, day care facilities, recreation facilities and doctors’ offices. The FAQs also include information about compliance with Title I, which applies to employers with 15 or more employees.
In particular, the FAQs address questions about situations involving service animals, mask requirements, long COVID-19, medical facility visitation and outdoor restaurant and retail spaces.
All entities subject to Titles II and III of the ADA should become familiar with the DOJ’s new FAQs. They should also follow the most current guidelines and suggestions for COVID-19 safety as issued by the Center for Disease Control and Prevention (CDC) and any applicable state or local health agencies.
Employers with 15 or more employees should also review guidance issued by the Equal Employment Opportunity Commission (EEOC) about how the ADA and other federal fair employment laws apply during the COVID-19 pandemic. Smaller employers should become familiar with any applicable rules under similar applicable state or local laws.
No. The rules for admitting service animals are the same even during the pandemic. A service animal is a dog that has been individually trained to do work or perform tasks for a person with a disability. The tasks must be directly related to the person’s disability.
A business or a state/local government generally must allow a service animal to accompany a person with a disability into any area where the public is allowed to go. A service animal cannot be excluded just because staff can provide the same services.
According to the CDC, the risk of animals spreading COVID-19 to people is considered low.
For example, a restaurant offers indoor and outdoor seating because of the COVID-19 pandemic. A woman with multiple sclerosis arrives at the restaurant with her service dog. The restaurant cannot require the woman dine outside because of her service dog.
No. The DOJ does not provide exemptions from mask requirements but is aware of certain postings and flyers about this on the internet, some of which include the DOJ’s seal. These postings were not issued or endorsed by the DOJ.
Yes. Long COVID-19 can be a disability under the ADA if it substantially limits one or more major life activities. There is a wide range of ways that this could present itself. Some examples include:
No. An individualized analysis is needed to determine whether a person’s long COVID-19 condition substantially limits the person’s health and daily living. For more information, see the DOJ’s Guidance on “Long COVID” as a Disability Under the ADA, Section 504 and Section 1557.
Yes. The EEOC provides guidance about the ADA and other federal laws that protect individuals against employment discrimination during the COVID-19 pandemic.
No. To limit the spread of COVID-19, medical providers have changed many of their policies, including restricting nonpatients from entering health care facilities. However, where these policies do not account for the needs of people with disabilities, they may result in unequal care and violate the ADA. For instance, where a patient’s disability prevents them from providing their medical history or understanding medical decisions or directions, the medical provider should explore whether a modification to its visitor policy may be safely carried out.
Several important limitations apply. Not every person with a disability needs someone with them in order to equally access medical care. For those who do not, excluding a companion does not violate the ADA. Also, the ADA recognizes that protecting the rights of individuals with disabilities may need to be balanced with other safety concerns. For instance, the ADA allows health care providers to impose “legitimate safety requirements” necessary for safe operation. But a blanket ban on all nonpatients in all care settings does not fall into this narrow category – even in the midst of COVID-19. Where the exclusion is necessary from a public health perspective, medical providers should think creatively about how to best serve the needs of the patient with a disability.
Examples include the following:
Yes. Just as the ADA requires businesses to make indoor restaurants or retail shops accessible to people with disabilities, it requires businesses to make outdoor spaces for dining and retail accessible as well. Local governments must also make sure that their programs and activities – such as providing and maintaining curb ramps, accessible routes on sidewalks and accessible street parking – continue to comply with the ADA even though “business” has moved outside.
For a restaurant, this could mean providing an accessible route from the accessible parking and the accessible sidewalk to the outdoor dining area’s accessible seating. An accessible route is one that is free of obstacles – such as sandwich boards, heaters, planters, chairs, or tables – that would make it difficult or impossible for a person with a mobility disability to access the business. For an outdoor retail space, this could mean providing an accessible route from the accessible parking and the accessible sidewalk to and throughout the retail space and providing an accessible check-out area.
Additionally, this could mean removing objects that stick out or protrude into the sidewalks that people use to get to and through these spaces. Many objects, such as umbrellas, canopies, tables, tree branches or displays, are at heights that cannot be detected by someone using a cane to assist with their vision disability. These protruding objects make the sidewalk dangerous to people who are blind or have low vision. To eliminate hazards, a restaurant might need to contact their local government to trim trees along the sidewalk that are now within or part of an outdoor dining or retail space.
For local governments, complying with the ADA could also mean making sure during the permit process as well as on an everyday basis that streateries or outdoor retail do not block curb ramps, sidewalks or accessible street parking so that persons with disabilities may continue to use them.
Examples include the following:
Source: U.S. Department of Justice
This article is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice. All rights reserved.
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