Restricting Third-Party Access to Premises Due to COVID-19

March 17, 2020

As the number of COVID-19 cases continues to grow in the United States, many businesses struggle to balance their obligations under the Americans with Disabilities Act (ADA) as places of public accommodation, with their obligations under OSHA to maintain a safe workplace for their employees. In light of this rapidly changing climate, businesses that are weighing restrictions to otherwise accessible establishments based on the threat of COVID-19 spread must consider the legal implications.

Under the ADA, businesses generally may not prohibit third parties, such as customers, access to places of public accommodation on the basis of a disability. Thus, the first question is whether COVID-19 is or could be perceived as a disability. Under the ADA’s public accommodations title, the answer is not clear. The ADA requires businesses to analyze, on a case-by-case basis, whether a condition “substantially limits one or more major life activities.” Further, unlike other (including employment) provisions of the ADA, the public accommodations title does not exclude temporary conditions. Businesses should not, therefore, rely on a blanket exclusion from the ADA for COVID-19 when evaluating obligations to the public.

Even if COVID-19 implicates the ADA, businesses must take steps to protect their workplaces. Under the ADA, businesses may restrict access to individuals who pose a “direct threat” to others. Because of the global response to this virus, including the designation of a national emergency, screening for COVID-19 symptoms will likely be appropriate under the ADA’s direct-threat analysis.

Businesses thus may actively inquire of entering customers or visitors whether they are experiencing, or have been in close proximity with others experiencing or exhibiting, COVID-19 symptoms. To the extent customers answer in the affirmative, it would be reasonable under the ADA to deny entry to such individuals as they could pose a direct threat of disease spread at the work location. Importantly, the inquiry should be focused on symptoms of COVID-19 (as articulated by the Centers for Disease Control and Prevention and other recognized organizations), as opposed to general inquiries about the individual’s health.

Even without an inquiry, businesses may prohibit individuals exhibiting or experiencing symptoms associated with COVID-19 from entering their premises. To minimize exposure, businesses can communicate this request via signs on the door or in the parking lots of their facilities, through social media, and/or via email distributions to their customers, so customers are likely to see this request before they enter the business premises.

To the extent practicable, businesses should also consider whether and how they can provide products and services without risking the contamination of the workplace. For example, accommodating customers via online or telephone ordering, drive-through services or home delivery will further mitigate the risk of a public accommodation denial claim.

To adapt policies to the rapidly changing nature of this crisis, businesses should actively monitor COVID-19 developments provided by CDC and state and local health department guidelines, including updates to symptoms and advisories. It is critical to rely on the most recent information from reliable sources when developing a plan for protecting the workplace against COVID-19. The following resources provide additional guidance on addressing COVID-19:

The U.S. Equal Employment Opportunity Commission’s Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

OSHA’s 2020 Guidance on Preparing Workplaces for COVID-19

President Trump’s Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak

For answers to questions or additional guidance on how these new recommendations and other COVID-19 considerations may impact places of public accommodation, employers can contact any of the McGuireWoods COVID-19 Response Team members below.