Class Codes and Tip Practices: New Requirements and Exposures for RestaurantsSome hotels and restaurants have been encountering some surprising allegations related to the Americans with Disabilities Act (ADA). Allegations can stem from both real-world and virtual services and can come from customers, employees, and even job applicants. Even if you’re careful about adhering to the ADA, there are several evolving risks you need to watch.
Your Website Might Not Be Compliant
It’s not just your physical location that could lead to ADA accessibility complaints – your website could also spur claims.
Many hotels and restaurants now use online reservation systems. According to the National Law Review, many have been hit with ADA lawsuits over these website reservation systems. Issues tend to occur when online booking systems fail to identify accessible features or to allow customers to easily choose accessible rooms.
Testers May Be Looking for Problems
ADA website accessibility lawsuits are frequently filed by “testers.” These are people who have no intention of staying at the hotel but who go to multiple websites looking for accessibility issues.
Testers also target restaurants and physical locations. According to the Miami Herald, one tester has sued approximately 380 businesses in South Florida over ADA violations, including a Cuban sandwich shop that had to pay $11,000 in legal fees in addition to making some repairs. Since 2010, more than 11,000 similar lawsuits have been filed. The top 10 testers are responsible for close to two-thirds of all these cases.
According to NBC News, whether testers have the legal standing to file ADA lawsuits is now being decided by the Supreme Court. The case involves a disability rights activist who has filed hundreds of federal lawsuits against hotels. One of these hotel companies is arguing that the plaintiff has not demonstrated an injury occurred and therefore has no legal standing for a lawsuit.
Service Animals Could Put You in the Doghouse
For the purposes of the ADA, a service animal is one that “has been individually trained to do work or perform tasks for an individual with a disability.” Emotional support animals that merely provide comfort do not qualify as service animals because they have not been trained to perform a specific task. However, animals that calm individuals experiencing anxiety attacks could possibly count as service animals. Additionally, service animals do not need to be trained in professional service dog training programs and don’t have to wear anything (such as a special vest) that identifies them as service animals.
This can lead to challenges when a business has a no-animal policy and someone claims a pet is a service animal. Companies cannot require proof or documentation nor can they ask about the nature of the disability, but they are allowed to ask whether the dog is a service animal required due to a disability and what task the dog has been trained to perform.
Rejecting a service animal could lead to an ADA lawsuit. According to the Tri-City Herald, a restaurant in Washington has agreed to pay $11,000 after refusing service to a customer with a service animal.
Employees May Demand Work-from-Home Accommodations
Remote work surged in popularity during the COVID-19 pandemic. According to the American Bar Association, as worksites reopened, some employees asked to continue working from home because they were worried about COVID-19 exposure or had underlying health conditions. The EEOC has said employers don’t have to provide telework as an accommodation to workers without disabilities. However, remote work could be considered a reasonable accommodation for workers with disabilities.
Remote work can be an accommodation for many different conditions. For example, according to SHRM, a fragrance sensitivity could count as a disability under the ADA. Creating a fragrance-free workplace may be difficult (or even impossible), but other accommodations – such as letting the employee work from home – may be a possibility.
Some employers may resist requests to work from home, especially if they suspect that workers are using the ADA as an excuse. However, this could be difficult to prove, and disputes could end up in litigation.
AI Applicant Screening Tools May Discriminate
Many employers have started using AI-powered tools to screen resumes. According to the EEOC, this could lead to discrimination against people with disabilities. For example, algorithms may screen out individuals with disabilities even though those individuals could do the job when given reasonable accommodations.
Programs that screen out individuals with gaps in their employment history could also be an issue. In some cases, job applicants may have taken off time to deal with a disability. For example, a candidate might have been unable to work due to a cancer diagnosis. If a company rejects this person’s resume due to the employment gap, there may be grounds for an ADA claim.
Do You Have Coverage?
Avoiding ADA lawsuits is always best, but if you’re hit with a claim, you’ll need coverage. Heffernan can help you secure the liability coverage you need for ADA compliance risks and other emerging issues. Learn more
