COVID-19 Litigation and Mitigation Strategies Series: Customer Challenges to Face Covering Mandates and Other Pandemic-Related ADA Title III Litigation

The U.S. Centers for Disease Control and Prevention (CDC) has issued guidance recommending the wearing of face coverings to slow the spread of COVID-19, and an increasing number of state and local governments have passed measures requiring the wearing of face coverings in indoor public spaces. In this installment of our COVID-19 Litigation and Mitigation Strategies Series, we will address the applicability of Title III of the Americans with Disabilities Act (ADA) to pandemic-related claims, including instances in which a customer claims not to be able to wear a mask due to a disability. Topics to be covered will include:

• mitigating the risk of face covering claims;
• defending face covering and other Title III claims, including the “direct threat” defense;
• class action claims and defenses, including strategies to defeat class certification;
• operational considerations for disabled customers; and
• potential Title III COVID-19-related claims related to privacy and website and architectural access.