- Service animals are always allowed in public establishments. You may ask if they’re required to accompany the disabled individual or what tasks they can do. You may not ask for proof of certification or medical documents.
- In California, it’s a good idea to get a CASp report for your facility. An inspector can inform you of any violations your facility may have and provide solutions. It’s also a good strategy to defend against “drive-by” ADA claims.
- Provide disability accommodations for invisible disabilities, such as mental illness or substance abuse. It’s always appropriate to check in and give unpaid time off. However, if it impacts work performance, disciplinary action may be required.
In February, we hosted Marie Trimble Holvick at the Pared office to broadcast our very first segment of Pared On-Air, entitled “Restaurant Labor Laws and Compliance in 2019.” Holvick is a partner at Gordon & Rees, specializing in their Employment and Retail & Hospitality practice, and she also serves on the Board of Directors for the Golden Gate Restaurant Association.
This is the last of our four-part series where we review highlights from the webinar. This installment covers restaurant ADA and disability compliance. If you missed it, find our first post about preventing wage and hour claims, our second post about proper tip handling, and our third post about sexual harassment training.
Disability accommodations overview
The U.S. Census Bureau estimates that over 1 in 5 individuals in the US has some type of disability. As a restaurant operator, it’s important to factor this statistic
Ensuring ADA compliance for your facility and customers
As a restaurant owner, you have a legal responsibility to remain in compliance with the ADA. Therefore, you may have to modify your business policies and practices so individuals with disabilities can dine or work at your restaurant alongside nondisabled individuals.
Accommodating service animals
The ADA requires public accommodations for service animals (e.g. guide dogs for the blind) . However, it’s important to note that the ADA does not cover emotional support animals. Keep in mind that you’re can only ask for limited verification of an animal’s service status. You may ask if the animal is required to assist the disabled individual or what assistance it can provide. However, you cannot ask for proof of the service animal’s licensing or certification. Nor can you ask to see the customer’s medical documentation clarifying their disabled status.
Making sure your facility is ADA compliant
The best time to be thinking about disability compliance is before even beginning construction
In California, it’s a good idea to hire a Certified Access Specialist (or CASp) to conduct an inspection. During an inspection, a state certified inspector walks through your facility and then produces a CASp report that details any violations. They may also recommend a plan for addressing them based on your budget or scope of work.
While a good score on your CASp report is a great start, thinking about compliance doesn’t stop there. For example, a diner wants to squeeze in an extra seat at her table for a late friend. Doing so can expose you to ADA noncompliance claims, as it may block the aisle for patrons who use wheelchairs. Instead, train servers to say, “We appreciate your business and while your satisfaction is our top priority, we can’t squeeze in an extra person because that would block our aisle for other patrons.” Training your staff to keep disability accommodations top of mind is key to promoting accessibility for all.
Beware of drive-by ADA claims
Marie warns that “there are some attorneys and disabled persons who make it their business to file these claims. You’ll see 12 to 20 lawsuits filed in one day by the same person.” Their goal is to come in, take a glance to check for
Making reasonable accommodations for disabled employees
Aside from making physical accommodations, restaurant operators also need to know that the ADA provides coverage for invisible disabilities. It’s straightforward to make accommodations for an employee with a broken arm. However, with someone suffering from substance abuse or mental illness, you can’t necessarily see their disability; however, you still have to accommodate them.
Check in and provide support
Consider an employee who shows up to work disheveled. “I think a lot of managers jump straight to ‘We need to discipline them,’” notes Marie. “What I would recommend is your first question should be, ‘Are you okay? Is there anything you want to talk to me about?’ A manager is not allowed to ask, ‘What’s wrong with you?’ In other words, ‘Do you have a diagnosis?’” Instead, managers should accommodate by giving their employees an opportunity to share any relevant information.
If an employee says they’re pregnant and have morning sickness or they open up about depression, unpaid time off is always a reasonable accommodation. “It can be frustrating as an employer because that means you have to cover for the person for weeks. You might have to try and hire somebody temporarily, you might have to give people overtime to schedule coverage. So it can be frustrating, but it’s absolutely required by law,” Marie says.
Document before moving to disciplinary action
Employees aren’t required to disclose information about disabilities, but if it’s impacting work performance it’s reasonable to move toward discipline. Marie advises documenting, having another staff member present, issuing a warning or sending them home. If the behavior continues, potential termination may be required.
For a detailed discussion on these guidelines and more view our full webinar here.
Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. Please contact your attorney if you seek advice in regards to any specific issues outlined above.
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