ADA Covers Outdoor Eateries, Shopping Spaces, and Medical Providers

“Streateries” — the outdoor dining enclosures that popped up during the pandemic — and outdoor shopping areas must comply with the Americans with Disabilities Act, according to guidance from the U.S. Department of Justice (DOJ).

“Just as the ADA requires businesses to make indoor restaurants or retail shops accessible to people with disabilities, it requires businesses to make outdoor spaces for dining and retail accessible as well,” the federal agency said in their Common Questions about COVID-19 and the Americans with Disabilities Act.

Streateries and shopping spaces started popping up

Many restaurant owners created sidewalk eating areas and several retailers created parking lot shopping areas to maintain their businesses amidst pandemic health restrictions. The “street eateries” were quickly dubbed “streateries” as they expand outdoor seating into spaces such as sidewalks, parking lots, or even nearby roads.

The DOJ has clarified that streateries and outdoor shopping areas must be accessible to people with disabilities.

“This issue is current and new. It’s a reminder that semi-permanent operations also need to comply with the ADA,” Minh Vu, an attorney in the Washington, D.C. office of Seyfarth Shaw, said in an interview.

ADA requirements

The federal Americans with Disabilities Act (ADA) and state laws require restaurants and other businesses to have facilities that are accessible to those with disabilities. For example, there are specific regulations that the companies must comply with, including specified requirements for:

• Tables
• Restroom sinks
• Parking spaces
• Wheelchair ramp slopes

It also includes rules for dealing with service animals.

The ADA also requires that the business be able to “effectively transmit information” to those with communication disabilities, including the blind and deaf. For example, businesses have to read written information such as a menu to the blind, and medical facilities must provide sign language interpreters for deaf patients.

What do you need to know about your tables?

According to the “ADA Guide for Small Business,” if tables are provided, and the tables are attached to the wall or floor, then 5% of the tables must be readily accessible. If less than 20 tables are provided, at least one table must be readily accessible.

Accessible tables have height requirements.

According to the guide, an accessible table has a surface height of no more than 34 inches and no less than 28-inches above the floor. Knee and toe clearance under the table must be at least 27-inches high, 30-inches wide, and 17-inches deep.

The ADA also has an accessible route requirement.

An accessible route provides access to each accessible table and has a route that is 36 inches wide with no level changes greater than 1/4-inch from the restaurant entrance to an accessible table in the outdoor space.

Outdoor dining spaces

According to the DOJ’s guidance, to comply with the ADA, restaurants taking advantage of outdoor spaces must provide a travel path that lacks obstacles that make it difficult for those with mobility issues to get to the business or take advantage of its services. This includes items such as:

• Chairs
• Heaters
• Planters
• Sandwich boards
• Tables

The federal agency suggested that businesses with outdoor operations consider removing objects that “stick out” onto the sidewalks. DOJ noted that someone with a visual disability often can’t detect:

• Canopies
• Displays
• Tables
• Umbrellas

This is because these items are often at heights their assistance devices don’t warn them about.

Outdoor retail spaces

The Justice Department guidance also applies to outdoor retail spaces. For an outdoor retail space, compliance with the ADA could mean providing a 36-inch wide route that is free from obstacles in the:

• Checkout area
• Parking area
• Sidewalk area
• Throughout the retail space

The federal agency provided an example: A store sets up a curbside booth, blocking the designated accessible parking space. The store must move the booth to another location so that the accessible parking space and related access aisle can be used by people with disabilities.

What businesses should consider about ADA compliance

Vu said the main takeaway is that businesses with outdoor eating and outdoor shopping areas need to apply the same accessibility rules as those required for indoor spaces.

“If businesses create a new eating area on the street, there should be one or more accessible tables,” she said.

Vu continued by saying that “business owners should also think about the route. Is there:

• A 36-inch wide path from the eatery’s entrance to the table that complies with ADA requirements?
• An accessible table?
• A path to the accessible table?”

She recommends that business owners with outdoor spaces consider:

• How is the person going to get to the space?
• Is the path and space wheelchair accessible?
• Can those with disabilities get around in the space?
• Are those who use wheelchairs able to turn around in the space?
• Do you have an accessible table?

Service animals

DOJ has also reminded businesses they cannot stop patrons from being accompanied by service animals because of the COVID-19 pandemic. “The rules for admitting service animals are the same even during the pandemic,” the Justice Department said in the guidance.

The CDC has explained that the virus that the risk of animals spreading COVID-19 to people is considered to be low.

The DOJ offered an example in their FAQs. “A restaurant offers indoor and outdoor seating because of the COVID-19 pandemic. A woman with multiple sclerosis arrives at the restaurant with her service dog. The restaurant cannot require the woman to dine outside because of her service dog.”

Medical providers must comply too

DOJ also noted in the FAQs that medical facilities with a COVID-19 inspired blanket policy that excludes all visitors even in instances where the patient has a disability and needs help from another person such as a family member or an aide is not allowed.

The DOJ’s guidance suggests that a case-by-case analysis of companion requests should be undertaken.

The agency explained that “although the ADA allows health care providers to impose legitimate safety requirements that are necessary for safe operation, a blanket ban in all care settings does not fit into this narrow category even in the midst of the global pandemic.”

Reactionary facility policies are problematic

DOJ noted several problems with the healthcare facility policies, including that:

• The bans do not take into account the needs of people with disabilities
• These policies could result in unequal care
• Such rules violate the ADA

“When the pandemic first hit, many medical facilities adopted a stringent policy that only the patient could be in the facility,” Vu said. This created a “big problem” for people with disabilities who need a companion.

According to Vu, the DOJ guidance says, “you can’t have a ban like that. You have to make modifications to your policies if you are a healthcare provider for patients with disabilities who need someone else to go in with them.”

Healthcare provider changed the COVID-19 companion policy

One Nevada healthcare provider reportedly changed its policy after a woman wasn’t allowed in the facility to assist her husband, who was getting a blood transfusion, according to the Daily Mail. The woman reportedly died in the parking lot of the North Las Vegas VA hospital from hyperthermia. According to the news report, she had a body temperature of 109 degrees.

The woman had been denied entrance into the hospital because of COVID-19 protocols. Non-essential visitors were barred from entering many medical facilities to cut the risk of COVID transmission, with vaccines still months away from being approved.

The hospital reportedly changed its visitor policy after her death. According to the news report, patients are now allowed one visitor to accompany them at their appointment. The hospital has also increased patrols in the parking lot.

The medical facility did not respond to a request for comment.

The ADA continues to adapt to current situations

Small businesses have devised innovative solutions to the operational challenges posed by the coronavirus. However, compliance with local, state, and federal laws must be kept in mind.

Even though the ADA has been around since 1990, it’s one of several laws whose requirements businesses must consider as they operate in an environment that is still being affected by the global pandemic.