Read on Twitter
Okay. Lawyer here. Let's unpack this shit.
First, HIPAA does not apply. Period. HIPAA applies to medical facilities and users of medical info (your insurance company). Done.
The ADA claim is more insidious, and needs some explication. https://twitter.com/imsuchakilljoy/status/1262205466551214080
First, HIPAA does not apply. Period. HIPAA applies to medical facilities and users of medical info (your insurance company). Done.
The ADA claim is more insidious, and needs some explication. https://twitter.com/imsuchakilljoy/status/1262205466551214080
The ADA does indeed apply to stores, restaurants, hotels, and just about anyplace else that falls under the very broad definition of public accommodation.
And yes, people do fake it sometimes (especially wypipo claiming their animal is an a emotional support megalodon).
And yes, people do fake it sometimes (especially wypipo claiming their animal is an a emotional support megalodon).
So let's say that someone — and since this meme is circulating among pro-Trump spaces, we'll call them Todd and Karen — shows up at the grocery store without a mask and demands that they get to shop without it.
The store may still refuse.
The store may still refuse.
The ADA requires that public accommodations make "reasonable accommodations" to the request (in classic shit-poor legalese, the statutes uses two different senses of the word accommodation, sometimes in the same sentence).
A reasonable accommodation is one that allows the disabled person to avail themselves of the full use of the public setting reasonably.
Not necessarily the way disabled person wants to, but reasonably.
Not necessarily the way disabled person wants to, but reasonably.
Sometimes the reasonable accommodation is frankly suboptimal. Contemporary architects are HORRIBLE at disability accommodation. Grumble grumble my vision. https://nypost.com/2019/10/04/new-queens-library-cost-41m-but-isnt-fully-accessible-to-people-with-disabilities/
The Queens Library is a glaring example of inherently ableist design, and as a public library, they should have known WAY better.
The Library is still ADA compliant, however, because staff will retrieve books from the inaccessible sections.
The Library is still ADA compliant, however, because staff will retrieve books from the inaccessible sections.
It's a less than ideal solution — half the joy of libraries is wandering around the stacks finding something you didn't know existed — but compliance is inherently "less than ideal."
(In a cousin to the Queens Library design fuckup, there's the Cornell Library design fuckup — open grate floors that are both difficult for disabled people to walk on AND allow for unimpeded upskirt views. https://nypost.com/2019/11/14/cornells-new-library-exposes-students-to-more-than-literature/)
So Todd and Karen show up at the Piggly Wiggly without masks and then claim (1) the mask interferes with their health and (2) demand the store accommodate them.
What is the store to do?
What is the store to do?
Were I general counsel for a major grocery chain — and judging by my bank account I am surely not — I would advise store staff not to permit unmasked people to shop in the store, but to have store staff do the shopping for them, waiving any such fees that might ordinarily entail.
They might even go a step further and all for free delivery.
Accommodation must be *reasonable.* Reasonable is a sliding scale based on the circumstances, and is not necessary that the accommodation be exactly how the customer demands it.
Accommodation must be *reasonable.* Reasonable is a sliding scale based on the circumstances, and is not necessary that the accommodation be exactly how the customer demands it.
The beauty part is that this isn't even malicious compliance. It's a legit solution. Is it ideal? Probably not, but is it suitable for people claiming disability? Under the circumstances, yes.
Retailers have a responsibility to protect all their customers from infection (though that will be litigated mightily after people start suing over sources of infection — that's coming next year, guaran-damn-tee it).
Will this solution piss off the right wingers cynically twisting disability accommodation for their own purposes?
Absolutely, but these are the people who think ADA compliance is a shitstorm game for plaintiff's lawyers.
Absolutely, but these are the people who think ADA compliance is a shitstorm game for plaintiff's lawyers.
(That does happen from time to time where a plaintiff's lawyers sues a mom and pop bodega for having curb cuts a 1/2 inch too high or a bathroom slightly too narrow. It's more rare than the anti-ADA people claim, but it happens.)
Again, the accommodation must be *reasonable* not ideal, and not necessarily what the claimant wants.
Subject to the law, which in this case depends on whether a reasonable accommodation exists.
https://twitter.com/sportsguy1492/status/1262435106419093511?s=21 https://twitter.com/sportsguy1492/status/1262435106419093511
https://twitter.com/sportsguy1492/status/1262435106419093511?s=21 https://twitter.com/sportsguy1492/status/1262435106419093511
No. Let me clarify. There are few lawyers out there who who send investigators out to identify locations that are not in technical compliance. Technical compliance is important, because these locations may be generally in compliance.
https://twitter.com/mrosewiding/status/1262443682067894273?s=21 https://twitter.com/MRoseWiding/status/1262443682067894273
https://twitter.com/mrosewiding/status/1262443682067894273?s=21 https://twitter.com/MRoseWiding/status/1262443682067894273
They then file an ADA suit in the name of a disabled person (who may or may not have ever been to the location). They specifically target stores that are too small to fight back meaningfully.
They then extract a settlement from the store in the $5-10k range, split the money with the nominal plaintiff. Because the ADA includes attorney's fees, the nominal plaintiff gets the $1k statutory award, and the lawyers pocket the rest as attorney's fees.
Notably, the settlement does not include a requirement that the location GET into compliance.
It's barely a few notches north of extortion. Two of the guys who did this went to jail (for their other rackets, not this— this was perfectly legal).
It's barely a few notches north of extortion. Two of the guys who did this went to jail (for their other rackets, not this— this was perfectly legal).
Concerning bathroom width, many of the building codes now require assistive device plus x — so instead of 2x minimum, the store might be 1.9x. Able to fit, but technically non-compliant.
Muted the thread. Phone blowing up too much.
