What the ADA Tells Us about Accessibility when Implementing COVID-19 Regulations
May 15, 2020
During these unprecedented times when there is so much uncertainty about what the “new normal” will look like as the country begins to re-open, we wanted to remind everyone about an oldie-but-a-goodie law that has been around for almost 30 years. This law requires that places like businesses and state/local governments consider how their services might need to be tweaked in order to serve customers and clients, including those with disabilities. That law, of course, is the Americans with Disabilities Act (ADA).
Two key concepts related to the ADA’s non-discrimination provisions address the fundamentals underlying the majority of the questions that the ADA Centers have received nationwide over the past few months. As you design, implement, and strive to comply with new coronavirus regulations meant to keep everyone safe, you’ll want to keep these in mind.
Reasonably Modify Policies, Practices, and Procedures
We’ll begin with the ADA requirement to reasonably modify policies, practices and procedures that can inadvertently make it difficult for people with disabilities to access your goods and services. One example that you are probably aware of is that businesses/local governments must allow people with disabilities access when they are accompanied by service animals, even if there is a “No Pets” policy.
During the pandemic, we have received questions about the requirement in many areas of the country that people must wear face coverings when out in public, particularly in areas such as grocery stores. Given the nature of some respiratory disabilities, not everyone is able to wear a face covering (particularly for long periods of time).
Business owners should be aware that under the ADA they are required to reasonably modify this new policy requiring a face covering, if necessary to allow someone with a disability access to their goods/services. In fact, several states that have issued Executive Orders requiring face coverings have even acknowledged that they are not required to be worn by a person with a disability who would be adversely impacted or by children under the age of two. What the ADA ultimately tells us is that we should consider what can be done reasonably to ensure that people with disabilities are not unintentionally excluded from accessing your goods/services because of policies or procedures that can be reasonably modified.
Most modifications involve only minor adjustments in policies. Anything that would result in a fundamental alteration—a change in the essential nature of your business—is not required under the ADA. As an example, if a business only offers takeout service, not home delivery, the ADA would not mandate that the business must provide home delivery if requested by someone with a disability, as this could amount to a fundamental alteration for the business owner. While offering such a service would be appreciated by many, it is not be a requirement under the ADA.
Another fundamental non-discrimination provision of ADA addresses effective communication for people with disabilities. In this era of public notices shared online with many different computing platforms, it is important to remember that information must be equally accessible to those with disabilities.
A major shift has also occurred in educational settings during this pandemic, with many schools switching to virtual or distance learning. It is important that school administrators, teachers, students, and parents/guardians communicate to determine appropriate supports and modifications that may be necessary for students with disabilities during this time.
Although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methods. The US Department of Education’s Office for Civil Rights states “Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students. For example, if a teacher who has a blind student in her class is working from home and cannot distribute a document accessible to that student, she can distribute to the rest of the class an inaccessible document and, if appropriate for the student, read the document over the phone to the blind student or provide the blind student with an audio recording of a reading of the document aloud.”
Effective modifications and services that may be provided online for students with disabilities, if appropriate, include: time extensions for work, videos with accurate captioning or embedded sign language interpreting, and accessible reading materials. They also include many speech or language services through video conferencing. The Department of Education’s Office for Civil Rights has developed a short video that details online education and website accessibility features.
More about COVID-19 and the ADA
Because the coronavirus crisis has raised so many questions about the ADA, the ADA National Network has recorded a special webinar to address some of these concerns. Called Special Session: COVID-19 and the Americans with Disabilities Act (ADA): Access to programs and services, this webinar addresses questions from individuals regarding effective communication, health care services, transportation, modifications in policies and procedures, eligibility criteria, access to programs and services, and more.
Jennifer Perry has been with the K. Lisa Yang and Hock E. Tan Institute on Employment and Disability at Cornell University’s ILR School since 2014. Her work at the Northeast ADA Center is focused on providing training and technical assistance to stakeholders in New Jersey, New York, Puerto Rico, and the US Virgin Islands to assist them with implementing the ADA in their regions.
 Office of Special Education and Rehabilitative Services. (2020, March 21). Supplemental fact sheet addressing the risk of COVID-19 in preschool, elementary and secondary schools while serving children with disabilities. United States Department of Education, Office for Civil Rights.