Seyfarth Synopsis: The DOJ issued guidance on two COVID-era access issues, confirming outdoor business operations must comply with the ADA and prohibiting medical providers from adopting blanket bans on companion accompaniment.

The Department of Justice (DOJ) recently updated its Common Questions About COVID and the ADA (“Common Questions”) to include information on issues of interest to businesses with outdoor operations, including so called “streateries,” and to medical providers.  For restaurants and retailers that created sidewalk and parking-lot retail and eating areas to adapt to pandemic health restrictions, the DOJ makes clear those areas must be accessible to individuals with disabilities. For medical providers, the DOJ emphasizes a case-by-case analysis must be conducted of companion accompaniment requests.  The previous version of the DOJ’s Common Questions addressed only how the pandemic did not alter rules for admission of service animals and issues of more relevance to employers, including whether long COVID qualifies as a “disability.”  The newly added FAQs provide important new guidance for businesses grappling with COVID-era operational challenges.

Outdoor Business Operations Must Comply with the ADA

The new information confirms that outdoor restaurant and retail areas, many of which were introduced during the pandemic, must comply with the ADA.  Businesses must ensure there is an accessible route from the accessible parking to the outdoor eating or retail area by making sure outdoor fixtures (e.g., sandwich boards, heaters, planters, chairs, tables, umbrellas, etc.) are not blocking the path of travel.  Additionally, businesses must ensure there is an accessible route through any outdoor eating or retail space, that any outdoor check out area is accessible, and that outdoor operations do not block accessible parking spaces.

The guidance also reminds businesses with outdoor operations to be cognizant of objects that protrude into the sidewalk at heights that cannot be detected by a person with visual disability (e.g., umbrellas, canopies, table tops, tree branches or displays).  Even if the protruding object is something maintained by the city such as, for example, a tree branch, the business is obligated to report the issue to the city to have the tree trimmed.

Medical Providers Cannot Adopt Blanket Bans on Patient Companions

For medical providers trying to balance patient and provider safety with their ADA obligations, the DOJ warned that, even in the midst of the pandemic, a “blanket” rule banning all non-patients from entry into a medical facility would be impermissible.  Rather, the medical provider must consider whether a patient with disability needs someone with them to equally access medical care, and balance that need against legitimate safety concerns associated with COVID transmissibility.

For example, while a person with a mobility disability would not need a companion to assist them with mobility while in a medical facility, a person with Down Syndrome who cannot speak and who is in severe pain may need a companion to be allowed entry to ensure effective communication.  In other instances, a medical provider may instead allow for a companion’s remote participation in the patient’s care; for example, where a patient suffers a traumatic brain injury and wants their COVID-positive spouse to be involved in care discussions (we note the COVID-positive is likely key here, as the DOJ would likely otherwise require the companion be allowed in person absent extreme circumstances).  These three examples provided by the DOJ illustrate how fact-intensive the effective communication inquiry can be, with the DOJ encouraging providers to “think creatively” about how to best serve the needs of a patient with disability.

Given the importance of outdoor dining during the pandemic, it is important to ensure that your outdoor business operations are accessible.  For medical providers, the new guidance underscores the importance of ensuring that your staff conducts a case-by-case analysis of companion requests from individuals with disabilities.