Face-Covering Policy Preliminarily Upheld

In Pletcher v. Giant Eagle, Inc., et al., Giant Eagle is being sued by 69 plaintiffs alleging disability discrimination in violation of the Americans with Disabilities Act (“ADA”) in Federal Court in the Western District of Pennsylvania.  Title III of the ADA prohibits private places of public accommodation from discrimination against individuals with disabilities.  Under Title III, businesses must make “reasonable modifications” to their business and usual way of doing business to accommodate and serve people with disabilities.  In Pletcher, the plaintiffs are alleging, in part, that Giant Eagle’s face-covering policy—which requires that all customers wear a face mask, or, alternatively, a face shield—violates Title III of the ADA. 

While the litigation is proceeding, Giant Eagle scored a victory recently when the Court refused to declare Giant Eagle’s face covering policy violative of the ADA on plaintiffs’ motion for preliminary injunction. 

The impact of this opinion should not be overstated—it is a preliminary finding, limited to the parties in the case, and the litigation is still ongoing.  Furthermore, there may be later appeals or conflicting cases either within the Western District of Pennsylvania based on different facts or in other jurisdictions.  That being said, the Court’s opinion provides some insight that business owners can draw some takeaways from in tailoring their own ADA-compliant face-covering policies.

Takeaways include:

• Drafting a face-covering policy that closely tracks State and Local Orders and Recommendations, including permitting face shields for those who are unable to wear a face mask;
• Providing alternative means of service, such as, for example, order ahead and curbside pickup, as further accommodation to customers; and
• Assuring effective communication of a face-covering policy and alternative means of service to your customers, i.e. physical posting at public entries, website posting, etc.
  

Please contact a MacDonald Illig attorney if you have any questions regarding the ADA, COVID-19, and your business.