With COVID-19 infections reportedly approaching nearly two million cases in the US alone, law firms are predicting a rise in class action lawsuits under the Americans with Disabilities Act (ADA), claiming that businesses and public sector organizations are failing to safeguard citizens’ health and safety.
According to Title III of the ADA, discrimination based on a disability “in the activities of places of public accommodations in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation” 42 U.S.C. § 12182(a) is prohibited. This applies to almost all businesses that sell goods and services to consumers.
Moreover, Section 504 of the Rehabilitation Act specifically prohibits discrimination based on a disability, stating that “[n]o otherwise qualified individual with a disability … shall, solely because of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any [federal] Executive agency ….” 29 U.S.C. § 794.”
ADA violation civil fines and penalties for organizations and businesses can be up to $75,000 for the first ADA violation and $150,000 for additional violations.
Rights established under the ADA also extend beyond the ability of consumers with disabilities to access “brick-and-mortar establishments” to the accessibility of websites, mobile applications, and electronic platforms such as e-commerce, now increasingly becoming essential when social distancing and taking protective measures against COVID-19 commonplace. At least 142 local governments in the US alone have been sued due to website accessibility issues since 2011.
“COVID-19 class actions have steadily increased and are expected to expand across industries, jurisdictions, and areas of law. The impact of COVID-19 on business operations, consumer activity, and economic forecasts have made clear that the filings to date are only an early indication of what is to come,” says law firm Pierce Atwood.1
In a first of a kind lawsuit, Schoengood, et al. v. Hofgur LLC d/b/a Queens Adult Care Center and Gefen Senior Group, plaintiffs filed a class action complaint against the Queens Adult Care Center (QACC) alleging that QACC violated Title III of the Americans with Disabilities Act (Title III) and Section 504 of the Rehabilitation Act, for failing to provide resident health safeguards against COVID-19 at the assisted living facility.
The Queens Adult Care Center plaintiffs are asking for “broad injunctive relief, as well as the appointment of a Special Master at the defendants’ cost to oversee the facility and to make recommendations on preventing the spread of COVID-19 at the facility. They also seek reasonable attorneys’ fees and costs.”2
Additional COVID-19-related lawsuits recently filed under the ADA include Lewis v. Pritzker, No. 20-cv-02836 (N.D. Ill. May 8, 2020) that alleges discriminatory enforcement of health condition exemptions to face mask requirements while Winegard v. Johnson & Johnson, No. 20-cv-02132 (E.D.N.Y. May 11, 2020) claims under the ADA alleged difficulty in accessing website products for the hard of hearing.
Major technology companies have always championed efforts to make accessibility a key part of many products and services such as web browsers. Yet, the COVID-19 pandemic has made consumers without disabilities take notice of technology shortfalls when it comes to accessibility.
“Everyday tasks like buying groceries are particularly challenging for people who can’t leave the house or need assistance at the store. Much of the data on the spread of COVID-19 isn’t accessible to people who are blind. Home care is difficult to arrange in the age of physical distancing and lockdown orders. Access to proper medical care for all patients, regardless of disability, is an ongoing battle, and the digital divide continues to take a toll on many in the community,” according to CNET.
Technologies such as live streaming conferences, remote work, and telemedicine have also traditionally been thought of as too complex to meet ADA requirements or violate regulations such as the HIPAA health care act.
Microsoft, conversely, has made strides in making technology accessible to all by leveraging Artificial Intelligence and adding accessibility features into its products and services.
“As AI continues to empower human ingenuity, there are certain human-first actions that each one of us can put into practice,” says Shriram Parthasarathy of Microsoft.He suggests making sure that content is accessible before sharing it online, adding captions when posting pictures on social media, and using hashtags with capitalized first alphabet letters of every word for screen readers.
Parthasarathy also recommends always thinking about accessibility when building websites or apps versus as an afterthought and using digital event platforms for webinars, meetings, and online collaboration that have accessibility features including live captioning and keyboard-only navigation.
Finally, the Microsoft 365 suite of productivity apps offers an Accessibility Checker for Outlook, Word, Excel, PowerPoint that makes it easy for users to ensure their documents are accessible for anyone to read and edit content online.