Businesses are navigating an ever-changing landscape of restrictions, mandates and recommendations while operating during the COVID-19 pandemic. As 2020 comes to a close, most businesses have been operating in this unprecedented environment for several months. At the start of December 2020, more than 6,000 COVID-19 related lawsuits have been filed – many by customers alleging injuries sustained as a result of COVID-19 precautions implemented and enforced by businesses.[1] Below is a brief survey of such litigation and “takeaways” for businesses to consider to avoid liability in this new world:

• Mask Requirements

There have been a number of lawsuits filed against businesses enforcing mask requirements by individuals alleging they are unable to wear masks for medical reasons and fall within medical exemptions to government mandates. In the Eastern District of Pennsylvania, a plaintiff alleges violations of the Americans with Disabilities Act (ADA) when a child, who was allegedly unable to wear a mask due to autism, was turned away from the Disney Store. Emanuel v. Walt Disney Company, No. 20-cv-04639 (E.D.PA). In the Western District of Pennsylvania, a patient alleged violations of the Pennsylvania Human Relations Act and ADA when she was allegedly denied treatment at a foot and ankle specialist because she was unable to wear a mask due to Tuberous Sclerosis, a gene mutation resulting in benign tumors on her face. Ames v. Washington Health System Foot and Ankle Specialist, No. 20-cv-00887 (W.D.PA). In another lawsuit consolidated in the Western District of Pennsylvania, over 30 plaintiffs allege violations of the ADA after a grocery store refused their business for not wearing masks. Plaintiffs contend they were unable to wear masks and were exempt from government mandates due to a variety of medical conditions and/or disabilities. Pletcher v. Giant Eagle, No. 20-cv-00754 (W.D.PA).

Lawsuits have also been filed on behalf of hearing impaired customers based on business requirements that its employees wear masks. In the Northern District of California, a class action has been filed on behalf of all individuals in California who are deaf or hearing impaired, alleging that the use of opaque masks in defendant’s stores created communication problems by muffling speech and blocking mouth and facial expression, resulting in plaintiffs being unable to communicate with salespersons in violation of the ADA and state civil rights laws. Bunn v. Nike, No. 20-cv-07403 (N.D.CA).

• Injuries Resulting from Physical Barriers

In May 2020, a lawsuit was filed in Harris County, Texas alleging personal injuries when a plexiglass divider at a grocery store intended to prevent the transmission of COVID-19 fell and landed on plaintiff’s foot, requiring multiple surgeries. Homsy v. H.E.B., LP, No. 2020-28576 (Harris County, TX).

• Online Shopping

Both businesses and consumers are turning to online sales to minimize in-person COVID-19 exposure risk. Additional use of online platforms has highlighted problems with website compliance with ADA guidelines for visually impaired persons. Multiple lawsuits have alleged violations of the ADA and state human rights law when websites are found to be incompatible with screen reading software and guidelines for ensuring visually impaired people have access to website content. Olsen v. Halo Life, Inc, No. 20-cv-05328 (E.D.NY) see also Young v. Krispy Kreme, No. 20-05479 (S.D.NY).

• Quantity Restrictions

Reports of shortages and hoarding for resale have resulted in retailers choosing to limit quantities of high demand items. A lawsuit filed in the Superior Court in Ocean County, NJ alleges racial discrimination in how allowable quantities of cases of water were unevenly allocated among customers. Powell v. Walmart, Inc. et al, OCN-L-002356-20 (Ocean County, NJ).

• Special Shopping Hours for Vulnerable Populations

In the District of Columbia, class certification has been requested on behalf of immunocompromised individuals, alleging that Walmart violated the D.C. Human Rights Act and ADA by making arbitrary decisions as to who could shop at their stores during special hours for seniors and those of compromised health. Plaintiffs contend that these decisions (which were purportedly made by Walmart’s security guards) unlawfully discriminated against disabled people. McKnight-Nero v. Walmart, Inc., No. 20-cv-01541 (D.C.)

Takeaways

• Do not allow the focus on COVID precautions to override standard best practices to avoid physical injury. Make sure physical barriers and any restrictions within your establishment are not slip and fall or tripping hazards.
• Be diligent, but cautious, when implementing mask mandates. Make sure to also examine exceptions and exemptions within government directives, as well as exceptions carved out by the ADA and any similarly enacted federal or state law.
• Consider customers and clients who face medical and physical challenges when implementing COVID-19 precautions. For example, are alternate methods of communication available when a mask impedes the ability of customers’ or employees’ ability to communicate without sacrificing safety measures?
• Ensure websites are ADA compliant. Although website accessibility is gaining attention with the additional online shopping prompted by the pandemic, these guidelines are not specific to COVID-19 and will not go away as the pandemic subsides.
• Properly train employees to understand COVID-19 precautions. Employees need to have the training and tools to understand and implement COVID-19 restrictions in a manner that is perceived by customers and clients to be even-handed and fair. The alternative is to have policies implemented in a way that customers believe to be discriminatory, unfair and/or biased.