Giant Eagle is facing at least 32 class action lawsuits from customers related to its wear-a-mask policy. Giant Eagle is a grocery store and pharmacy chain with stores in midwest states like Ohio, Pennsylvania, and Indiana. See news reports here.

Like many retailers, Giant Eagle is walking a fine line between trying to prevent transmission of the coronavirus and not infringing on the legal rights of consumers and employees. On the one hand, retailers must follow health and safety guidelines to mitigate litigation risks with respect to consumers and employees contracting COVID-19 while shopping or working. If customers can prove that they contracted COVID-19 while shopping, the retailer can be liable for operating an unsafe and hazardous store. On the other hand, consumers and employees have privacy and anti-discrimination rights under statutes like the Americans with Disabilities Act (“ADA”).

According to reports, the lawsuits against Giant Eagle are asserting claims under the ADA and that Giant Eagle’s policies exceed the relevant county, state, and federal guidelines (thus, violating consumer’s rights). Giant Eagle has mandated that all customers must wear masks while shopping. The lawsuits claim that Giant Eagle employees “enforced” the policy by, allegedly, yelling at non-compliant customers and physically removing some from the stores. According to the lawsuits, employees were dismissive of claims by various customers that they had medical reasons to eschew wearing a mask. For example, the new report quotes a store owner as posting this statement, clearly disregarding ADA-related claims: “It’s too easy to make up an excuse not to wear a mask, and we refuse to put our team members and customers who do wear a mask at any more risk than they already are.”

Legally, expressing sentiments like this is the wrong approach. The ADA prohibits discrimination on the basis of disability in places of public accommodation — like a grocery store. The ADA DOES expressly allow that a public place CAN exclude individuals if those individuals are a “direct threat” to the health or safety of others. However, exclusion must be reasonable in light of other possibilities and the safety threat must be based on objective standards. A blanket policy without exceptions, such as “no mask, no shopping,” is usually a bad policy. The ADA can be satisfied if reasonable alternative accommodations are provided. Whether an alternative is “reasonable” can be debated legally, but offering two or three alternatives generally avoids the legal risk. With respect to grocery stores, several alternative accommodations might be reasonable. For example, if a customer has medical reasons for not wearing a mask, the following could be offered:

• Offering cost-free grocery pick up based on either a written list or online order
• For those that drop by, have an employee fill the customer’s shopping order while the customer waits
• Allow the customer to use special equipment — such as electric carts — which can help maintain social distancing
• Allow mask-free shopping for those with claimed ADA disabilities, but limit the number who can be in the store at any time — maybe, one at a time
• Provide special hours for those unable to use masks

Offering several alternatives helps alleviate legal risks in several ways. First, the fact that your store has ADA alternative accommodations is proof that your store is aware of ADA rights and has taken them seriously. Second, many consumers will find the alternatives acceptable (thus, reducing the pool of potential plaintiffs). Finally, the alternatives may be a complete defense.

If you have questions, contact the business lawyers at Revision Legal at 231-714-0100.

ADA Title III and Places of Public Accommodation

Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., prohibits discrimination on the basis of disability by places of public accommodation—a category that includes retail stores, restaurants, gyms, theaters, hotels, and professional offices. The statute requires that public accommodations provide full and equal enjoyment of their goods and services to individuals with disabilities and that they make reasonable modifications to their policies, practices, and procedures when necessary to accommodate individuals with disabilities, unless doing so would fundamentally alter the nature of the goods or services offered.

The ADA does expressly permit exclusion of individuals who pose a direct threat to the health or safety of others under 42 U.S.C. § 12182(b)(3). However, the direct threat standard requires an individualized assessment based on objective, current medical knowledge—not a blanket assumption. A facial mask policy that allows no exceptions for individuals who claim a medically documented inability to wear a mask almost certainly fails this standard.

The Interactive Process and Reasonable Accommodation

When a customer or employee presents a disability-related accommodation request, the ADA contemplates an interactive process: a good-faith dialogue between the business and the individual to identify what modifications would allow the individual to access goods or services without imposing an undue burden on the business or creating a direct threat. Businesses that dismiss accommodation requests without engaging in this dialogue forgo the legal protection that the interactive process provides.

For mask-policy situations, the range of reasonable modifications is broad. Offering curbside pickup eliminates the need for the individual to enter the store entirely. Scheduling a dedicated shopping time when the store is less crowded reduces transmission risk. Providing a personal shopping escort with appropriate protective equipment protects staff while accommodating the customer. Allowing the customer to wear a face shield rather than a mask may satisfy the safety objective for some individuals who cannot tolerate a close-fitting mask. A business that documents its consideration of these and other modifications is in a far stronger legal position than one that applied a blanket policy without exceptions.

COVID-19 Liability Exposure in the Other Direction

Businesses that fail to implement reasonable COVID-safety measures face tort liability from customers or employees who contract COVID-19 on their premises. Most states apply a negligence standard, requiring plaintiffs to prove duty, breach, causation, and damages. Establishing causation in a COVID transmission case is difficult but not impossible—contact tracing evidence and timing can support causation arguments.

Several states enacted COVID liability shields during the pandemic, providing limited immunity for businesses that followed public health guidance in good faith. These shields typically required compliance with applicable orders and guidelines; businesses that deviated from guidelines without a documented rationale may not benefit from the shield. As pandemic emergency orders have expired, these liability shields have also largely lapsed.

Policy Design: Walking the Legal Tightrope

• Draft a written health and safety policy that acknowledges the ADA and identifies a designated contact for accommodation requests.
• Train all customer-facing staff on ADA accommodation obligations and the interactive process before implementing any health-related restriction.
• Include an exception procedure in any mask or access policy that allows for individualized assessment of accommodation requests.
• Document every accommodation request and the business’s response, including any modifications offered and the reasons for any denial.
• Consult with legal counsel before publicly stating that a policy has no exceptions—blanket exclusion language is the single most common trigger for ADA demand letters.
• Review state and local public health guidance regularly; your policy should be calibrated to current requirements, not frozen at the restrictions applicable during peak pandemic conditions.

If your business has received an ADA demand letter, is defending an ADA lawsuit, or needs to design a legally compliant reopening policy, contact the business lawyers at Revision Legal at 231-714-0100.