While many potential targets for Americans with disabilities under Law III (ADA) are currently closed due to the COVID-19 epidemic, there are still a large number of pending cases in courts across the country, and businesses will continue to be prosecuted, especially as the public becomes more dependent on sites Web and mobile applications.

The total number of ADA Title III lawsuits filed in federal courts has increased every year over the past several years, with over 11,000 cases filed in 2019. However, this does not paint the entire picture, because this number excludes the large number of access to lawsuits They are filed in state courts under state and similar local laws and thousands of application letters sent by attorneys for attorneys that are often resolved without litigation.

Accordingly, companies are encouraged to reassess their strategies regarding pending issues in light of the epidemic and mitigate the risks of future claims. Here are answers to three pressing questions companies may have today.

What are the most common types of ADA Title III claims filed against companies?
Traditionally, ADA Title III claims have claimed alleged barriers to accessing physical places in public accommodations, such as steps at the entrance to a retail store, or a grab bar lost in a restaurant toilet or incorrectly sloped shopping mall. These “brick and mortar” claims tend to be made by prosecutors who have physical disabilities that affect their movement. Prosecutors often file these claims against both the operator of the facility in question and the property owner.

In recent years, as we mentioned in 2017, plaintiffs have also submitted claims related to access to websites and mobile applications. For example, blind or visually impaired claimants usually claim that they cannot access content or complete transactions because websites and mobile apps are not compatible with screen readers. Likewise, deaf or hard-of-hearing prosecutors generally claim that websites cannot be accessed if the videos do not have an appropriate caption. These cases are filed against companies whether they have a physical presence or not, as the courts ruled in some jurisdictions that the relationship between the site or the mobile application and the actual site is not necessarily necessary.

My work has been closed due to the epidemic of COVID-19. Does the closure affect the ADA Title III pending claim?

The answer to this question will likely depend on whether the closure is permanent or temporary. For example, if COVID-19 forces a company to shut down permanently and the company has no intention in the future to reopen it, the company may be able to secure the rejection of any pending or newly submitted claim from Chapter 3 ADA. The reason is that Title III of the ADA only permits restitution and the claimant must demonstrate a real and immediate threat of future injury. If the business is permanently closed, there is no possibility of injury in the future because the relevant “public place of residence” no longer exists. In these circumstances, the claim of ADA Title III will be the subject of a debate and the court will lack the substantive jurisdiction to adjudicate.

To the extent that the claimant also raises accessibility claims under state or local law – such as the New York and City Human Rights Act or California’s Unruh Civil Rights Act – the court may reject these claims or refuse to exercise jurisdiction over them. However, state and domestic legal claims may still be applicable under certain circumstances. Accordingly, companies should consult the consultant to discuss their specific situation when assessing this potential strategy.

On the other hand, if COVID-19 forces a company to temporarily shut down, the court may be less inclined to dismiss claims because the threat of a future injury has not been eliminated. However, a company that is temporarily closed may be able to obtain a suspension of litigation until the business is reopened or the deadlines for litigation are extended during the temporary closure. During this time, the company may consider addressing the alleged problems (if possible) in an effort to pass claims or explore settlement possibilities with the claimant, especially if the cost of ongoing litigation after reopening the business could jeopardize the business’s viability.
What can I do to protect my business from an ADA Title III claim during a COVID-19 pandemic?

As mentioned above, the most common ADA Title III claims are brick and mortar claims regarding architectural barriers in physical locations and digital accessibility claims in relation to websites and mobile applications. Although companies continue to be targeted for litigation despite the COVID-19 pandemic, there are proactive measures that companies can take today to ensure compliance with Title III of the AML Law and mitigate the risks of future claims.

Physical access claims

If the business has a physical site open to the public, the company must conduct a comprehensive review of the accessibility of the buildings and address as many problems as possible (especially before reopening it if the site is temporarily closed). Companies are particularly at risk of these “drive” claims if there are steps at their entrances and there is no permanent slope or platform lift. The plaintiff can have a workable claim – or at least one potential claim that survives the dismissal – without ever entering the institution (although most of the plaintiffs raise issues within the organization as well).

To a large extent, the obligations of companies under Chapter 3 of the ADA may vary depending on the construction date / change of the facility and other factors, such as structural problems or current conditions that make it “technically impractical” to comply with a specific ADA standard. For example, a business may be required by law to create a permanent ramp at its entrance, while another company may fulfill its obligations by simply deploying a mobile ramp.

Compliance is a specific and complex matter, especially considering the complexity of the ADA Title III regulations and defining the detailed scope and technical requirements outlined in the ADA 1991 and 2010 standards for available design. Consequently, we strongly recommend that companies review these issues with the assistance of an ADA-certified consultant and consultant with an architectural or engineering background. The attorney must keep the expert on behalf of the company and properly document the obligation.

Digital accessibility claims

Likewise, if a business has a website or mobile app, businesses must consult the advisor regarding their obligations under Chapter 3 of the ADA. As the government closes, requests to stay at home and the resulting corporate closings, people are increasingly relying on websites and mobile apps for information, transactions and community participation. Digital accessibility has never been more important than it is today, for example, people with disabilities may need to order online for their daily basics. Therefore, it would not be surprising if there was an increase in these “surfing” claims regarding websites and mobile applications in response to the COVID-19 epidemic.

Companies are encouraged to review the accessibility of their websites and mobile applications and ensure their accessibility. The generally recognized compliance standard is compliance with Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, standard AA level. Like the ADA standards for accessible design applied to physical facilities, these guidelines are very technical and sophisticated, and assessing accessibility to a website or mobile app in general requires extensive manual and automated testing by an expert.

We encourage companies to retain certified experts through a consultant to review their digital platforms, provide constructive feedback and help remedy any problems that may exist. Companies should also consider uploading an accessibility statement to their website or mobile apps, training the staff responsible for updating the website or mobile application, and conducting accessibility reviews on a regular basis. Most importantly, any changes made to a website or mobile application can exclude the platform from compliance and make it the target of litigation. For example, uploading a new image to a webpage might cause problems if no alternative text is provided for that image. In addition, companies must review their agreements with any third-party sellers operating within their digital platforms, as companies can be held responsible for any inaccessible third-party services.

Insurance coverage

Finally, insurance coverage may be available to companies to help reduce their financial exposure to ADA Title III claims. For example, these claims may be treated as third-party discrimination claims under employment insurance policies. While these policies often do not cover the costly treatment normally required to address Title Three ADA cases – whether material or digital – they may cover the costs of defending against these claims and any cash payments that may be due to the claimant as a result of a ruling or settlement.

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Continue Reading Article advisor regarding their obligations under Chapter 3 of the ADA. As the government closes, requests to stay at home and the resulting corporate closings, people are increasingly relying on websites and mobile apps for information, transactions and community participation. Digital accessibility has never been more important than it is today, for example, people with disabilities may need to order online for their daily basics. Therefore, it would not be surprising if there was an increase in these “surfing” claims regarding websites and mobile applications in response to the COVID-19 epidemic.
Companies are encouraged to review the accessibility of their websites and mobile applications and ensure their accessibility. The generally recognized compliance standard is compliance with Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, standard AA level. Like the ADA standards for accessible design applied to physical facilities, these guidelines are very technical and sophisticated, and assessing accessibility to a website or mobile app in general requires extensive manual and automated testing by an expert.
We encourage companies to retain certified experts through a consultant to review their digital platforms, provide constructive feedback and help remedy any problems that may exist. Companies should also consider uploading an accessibility statement to their website or mobile apps, training the staff responsible for updating the website or mobile application, and conducting accessibility reviews on a regular basis. Most importantly, any changes made to a website or mobile application can exclude the platform from compliance and make it the target of litigation. For example, uploading a new image to a webpage might cause problems if no alternative text is provided for that image. In addition, companies must review their agreements with any third-party sellers operating within their digital platforms, as companies can be held responsible for any inaccessible third-party services.
Insurance coverage
Finally, insurance coverage may be available to companies to help reduce their financial exposure to ADA Title III claims. For example, these claims may be treated as third-party discrimination claims under employment insurance policies. While these policies often do not cover the costly treatment normally required to address Title Three ADA cases – whether material or digital – they may cover the costs of defending against these claims and any cash payments that may be due to the claimant as a result of a ruling or settlement.