Compliance Blog

With the ever-evolving challenges related to the COVID-19 pandemic, it is important to be mindful of compliance with the American with Disabilities Act (ADA).

ADA Compliance During COVID-19

As credit union branches remain closed and more members use mobile and online banking platforms, it is important to review existing policies regarding website accessibility and make sure any updates made to websites and applications does not affect accessibility. Although the DOJ’s regulations and the ADA are silent as to website accessibility standards, some courts have ruled that credit union websites are places of public accommodation and must meet accessibility standards. Certain courts require accessibility based on private industry standards, set by the Web Content Accessibility Guidelines (WCAG). Many credit unions have already taken steps to make their online content accessible in their commitment to serving their members.

As states re-open and staff begin to come back to work there are also certain measures which credit unions, as employers, should be aware of. The U.S. Equal Employment Opportunity Commission (EEOC) published FAQs titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” This FAQ answers questions on taking employees’ temperatures and the confidentiality of medical information. As provided in the FAQ, an ADA-covered employer may take the body temperature of employees during the COVID-19 pandemic. In terms of employee medical information, the ADA requires all medical information about a particular employee be stored separately from the employee’s personnel file, limiting the access to confidential information. According to federal regulators, medical information related to COVID-19 may be stored in the employee’s existing medical file. There are many other considerations though, some of which have been outlined by this law firm which may be a helpful resource. Overall, employment law is also state law heavy and generally outside NAFCU’s expertise. Credit unions that are considering the risks associated with reopening branches, including but not limited to potential obligations as employers, may need to consult with counsel to determine their obligations.

Litigation Recap

As credit unions were the unfortunate target of ADA litigation in the past, occasionally credit unions will ask if there are trends in this area. While not directly related to credit unions, a new target has emerged in this area – restaurant and retail gift cards.

In 2018, an unprecedented amount of ADA Title III lawsuits regarding website accessibility were filed across the country, with the number of lawsuits staying roughly the same for 2019. In October 2019, the U.S. Supreme Court declined to hear  a case involving Domino’s Pizza, LLC, leaving a split of authority among courts regarding the applicability of the ADA to websites. While this kind of litigation against credit unions has declined, NAFCU continues to urge the Department of Justice (DOJ) to initiate a rulemaking or provide guidance on what accessibility means in the context of websites.

ADA Litigation Updates

Last fall, the United States District Court for the Southern District of New York was flooded with cases against various restaurants and retailers claiming that their failure to include braille on gift cards constituted a Title III violation of the ADA. Recently, the court held in Dominguez v. Banana Republic, LLC that the plaintiff lacked standing to sue because he had not demonstrated an injury in the absence of braille on the retailer’s gift card, or a future injury. As this case was an issue the court had never reviewed before, the court also considered specifics of the case, concluding that:

·       Title III does not require a retailer to alter the mix of goods that it sells to include accessible goods for a disabled person. Title III regulates access to places of public accommodation, not the type of merchandise it sells;

·       A gift card is not a place of public accommodation and to consider it as such would require a re-write of Title III; and

·       The defendant did not deny plaintiff access to a service by failing to provide him with an accessible gift card because the plaintiff never asked for an auxiliary aid or service in the first place.

Previously, courts in this district have ruled that a website is a place of public accommodation and broadly defined the word “place” to include every “sales or rental establishment” and “service establishment.” However, the court refused to determine that a gift card be considered a “place.” The ADA does not define a “place;” however, the law does list twelve categories of places that qualify as a public accommodation such as bank and credit union branches. A gift card does not fit within these enumerated categories.

This case is the newest wave of ADA litigation filed by a small number of plaintiffs’ attorneys using “copy and paste” litigation tactics. The judge made that clear in his conclusion by noting that the plaintiff referred to Banana Republic as a food establishment. If Banana Republic sold snacks, it would be the only store I would go into!

NAFCU met with DOJ staff last year on website accessibility cases the credit union industry was facing. NAFCU will continue to monitor ADA litigation trends and keep you updated. If you have questions, please reach out to me at kschafer@nafcu.org.