With New York City on the verge of entering Phase Two of the New York State Forward reopening plan, Mayor Bill de Blasio issued an Emergency Executive Order on June 18, 2020, establishing the City’s “Open Restaurants Program.” The Program will expand outdoor seating for restaurants, bars and other establishments and allow for the service of guests on certain sidewalks, curbside and streets.

While the Order relaxed many legal requirements to allow restaurants, bars and other establishments to serve patrons in these various outdoor spaces, significantly the Order does not relieve establishments from their obligations to comply with Title III of the Americans with Disabilities Act (ADA) and any other legal requirements that concern accessibility for persons with disabilities. Accordingly, businesses must continue to comply with the law and, to mitigate the risk of claims, operators should consider these issues before serving guests in outdoor areas.

In particular, operators should ensure that they are offering a sufficient amount of accessible seating and standing positions at outdoor dining surfaces and have an accessible route to those locations. For example, the 2010 ADA Standards for Accessible Design mandate that at least 5% of the seating spaces and standing spaces meet certain technical requirements. Those requirements include ensuring that the accessible dining surfaces are between 28 and 34 inches above the ground, which should be level and have a slope no steeper than 1:48 (or roughly 5%). Additionally, clear floor space and proper knee and toe clearance is required.