Written by Nina Endler of Boulder, CO July, 2020
Earlier this year, something happened in my neighborhood of 1960s ranches, split levels, and tri-levels that I wished had been there while my children were growing up. (For the record, they’re 19 and 22.)
In the first part of a year that marks 30 years since this happened -my neighborhood, in which the trees now tower over the houses at long last received these: curb cuts!
How nice it would have been to have these while I was pushing a baby jogger, while my daughters were learning to ride bikes, while…
But wait, that’s not their intended purpose – that’s not their raison d’etre.
They are, however probably the best example of universal design, of something that was done so more of us could participate and which those of us who were already participating also benefit from. With them, my neighbors who are now pushing baby joggers no longer need to carefully navigate going down and then up each curb. Children who are now learning to ride bikes no longer need to stop, get off their bike, and then get back on. Walking and wheeling through the neighborhood is now more seamless. Something for which the wheels (pun intended) were set in motion 30 years ago is benefiting significantly more people than was initially intended.
Recently, the state chapter of the union I belong to held a webinar and after it was over, emailed the link to its membership. I received this email on my phone, clicked on the link, and, as I do when captions don’t automatically come up, searched for a way to turn them on. As the displays are different on different devices, and willing to give the state chapter of my union the benefit of the doubt, I figured that the captions didn’t display on smaller devices such as phones. Since I wasn’t near my larger devices at the time, and as I had also seen a social media post about the webinar, I inquired on the post about the availability of captions. The state contact apologized “that wasn’t accommodated on this webinar. I realize that is not ok and we will correct for future webinars.”
It has now been 30 years since the first President Bush signed the ADA. Let’s stop thinking of captions as an accommodation. Let’s stop thinking of things like curb cuts and captions as accommodations and start thinking of them as universal design. Let’s eliminate the perception of curb cuts and captions as being “for those who need them.” Just as people who are currently pushing baby joggers and children who are currently learning to ride a bike in my neighborhood are benefiting from the new curb cuts, here’s a starter list of how people with typical hearing benefit from captions.
Because captions are still thought of as an accommodation rather than as universal design, OTTO Health didn’t include captions in their telehealth platform. Because captions are still thought of as an accommodation rather than as universal design, Zoom does not offer live captions that anyone can turn on with the click of a button. Because captions are still thought of as an accommodation rather than as universal design, I can’t follow a YouTube video that doesn’t have the CC icon in the lower right corner.
Let’s stop thinking of things like curb cuts and captions as accommodations and start thinking of them as what they really are – a universal design that everyone benefits from. With universal design, webinars wouldn’t be filmed, online platforms wouldn’t be made and YouTube videos wouldn’t be posted without captions. And someone with typical hearing can watch the recording of a webinar in bed while they’re insomniac and not wake up the person sleeping next to them.
Photo of Kevin Williams, CCDC Civil Rights Legal Program Director, wearing a suit and seated in front of poster of Justice Thurgood Marshall with caption, “In recognizing the humanity of our fellow human beings, we pay ourselves the highest tribute.”
I have tried to follow what I can regarding everything that has been posted on the mask “debate” subject, but it is time-consuming to follow, and I already have two full-time jobs: (1) I am a civil rights lawyer for people with disabilities; and (2) I am a quadriplegic which, as many people with disabilities know, comes with it a remarkable number of duties that easily occupy forty hours of my week (managing attendant care, fighting with benefits agencies over “work incentive” programs, managing attendant care payroll duties, addressing durable medical equipment issues and repairs, addressing accessibility issues and failures, dealing with multiple medical appointments with types of medical personnel about whose professions I wasn’t aware before my spinal cord injury, etc.– the usual stuff people with disabilities deal with).
As a quadriplegic for 34 years, paralyzed from the chest down and with limited arm and hand function, pre-pandemic, I had some complicated daily issues. The basic stuff, like getting dressed and getting out of bed. But, because of my quadriplegic hands which I like to call “paws,” I have great difficulty getting my Bluetooth (the only one I found that I can even work) and my glasses on and off independently without dropping them, breaking them or without making my glasses so filthy in the process of taking them on and off independently, I can’t use them. Now, given what I believe is a critical need (and now a duty imposed by Executive Order of the state of Colorado), I cannot get a mask on that loops around my ears on and off effectively. I can’t seem to find any other types of useful facial coverings that work either. I have tried many.
Combine this with the fact that I am an attorney who specializes in disability rights enforcement, and I have to say this whole subject has been very interesting and has become somewhat nauseating. Why? I’ll tell you.
There certainly are a multitude of different forms of masks with varying degrees and levels of protective capabilities and efficiencies. I think we at CCDC have seen and heard and read the gamut of reasons why people claim they cannot wear masks, and some of them even seem reasonable. Recently, for example, CCDC received an email message from a person who said he was an attorney who told us that because he had COPD, he was very upset by the CCDC mask policy which is posted on our website. He stated in his email that he certainly would never recommend anybody use our services because of what he alleged was a discriminatory policy. CCDC designed the policy to address the extraordinary and important healthcare crisis that affects many of our own staff and many people in the general public. As you might be aware, there is a pandemic that is killing people. People with disabilities are often the first to go. Also, has anyone heard the word “comorbidity?” It is a term that is all the rage in newspapers and scientific journals. It is also something that describes the disabilities of many people, including maybe even me.
And, in the case of the “lawyer” who sent the email saying he won’t refer anyone to us because of our “discriminatory” policy, here is what I would have to say about that if a client contacted CCDC regarding such an issue:
First, in order to prove discrimination on the basis of disability, we would have to prove (1) the alleged impairment an individual has (difficulty in breathing, for example) “substantially limits” a major life activity (breathing certainly counts as a major life activity, but how substantially limited is the individual’s ability to breathe as it relates to the COPD and what medical records and doctors we are going to need to be able to prove that to a judge or jury are all questions we must consider. (2) wearing a facial covering (as we are now required to do under Colorado law) somehow prohibits the individual from engaging in the major life activity of breathing (it is pretty unlikely that a mild impact upon the ability to breathe would create a case that would survive dismissal of a lawsuit); (3) is there any other accommodation for that impairment that might allow compliance with the state law mandate and avoid concern regarding the direct threat to the health and safety of others that might alleviate the problem (like a different type of facial covering designed in a way that helps the individual with the impairment and still protects others from getting a potentially life-threatening virus which is the goal here)?
Now, if I can assist someone and jump through all of those hoops, I still have to prove that allowing the individual to avoid wearing the facial covering does not pose a “direct threat” to the health and safety of the individual or others. That is going to require a lot of medical records, medical individuals and their sworn statements and testimony. It is also going to cost a lot of money and take a lot of time. CDDC’s Legal Program might consider taking this on, but what if we can’t prove everything I have listed? A case is not won by someone saying, “I have a disability, and your rule requiring me to wear a facial covering makes things difficult for me.” We need evidence. We need data. We need testimony that is credible. We need proof. AND we need to show the defense of public safety is not real. I would suggest that the evidence of how not wearing a facial covering and spreading germs has a substantial basis in scientific evidence to be able to combat a theory that absolutely no facial covering whatsoever would eliminate the direct threat. I can’t say I know the answer to this question in every case because other than email rants and social media rants and people who make unfounded claims without such evidence is all we have seen so far. If I had all of the evidence before me, I might be able to agree that an individual has a valid claim. Just saying you have a disability and saying that some activity required by law substantially limits you in engaging in one or more major life activities as defined by law is not sufficient to hold up in court, my friends.
Now let’s talk about me some more. I have a limited respiratory capacity (34 years of chest muscles that don’t work as well as having to have been on a ventilator once before after dying from sepsis and having to be resuscitated). I also have a highly compromised immune system as a result of repeated infections throughout my life. These are just a couple of potential comorbidity factors I deal with. Can you tell I really like that word?
Even before the recent Order, CCDC had a mask policy. As did the City and County of Denver. Many people at CCDC gave the mask policy a great amount of consideration. CCDC took into consideration an enormous number of viewpoints. As stated in the policy itself, CCDC always remains willing to update or make “reasonable modifications” to the mask policy and any other policy as needed to address changes in any factors like the availability of the types of masks out there as well as the extremely important need to keep our staff, members, clients and the general public safe. We certainly would not want to create a “direct threat” to the health and safety of our staff and others. Especially the community of people with disabilities we serve and those who run CCDC.
All of this work to create a policy has been done only to result in having extremely nasty insults hurled our way as a result. Luckily, “screaming” arguments usually in ALL CAPS through social media or some other quick and easy method that does not involve actual face-to-face communication with human beings (pardon the choice of words given the subject matter) which are rampant regarding the subject of wearing masks do not force CCDC to take a case or provide assistance without implementing a policy for the intended purpose of saving the lives of those we serve. I can’t help you with your legal claim if either of us dies from COVID-19.
Back to me again. What I have found that works best for me is the basic disposable mask that I wear all day long as a beard cover or chin cover most of the time. I have the good fortune of being able to work at home most of the time to avoid exposing you to the virus (or vice-versa), but there are all sorts of reasons why we all must go out for various reasons, sometimes unexpectedly. Therefore, I have to leave my mask on all the time. I call it my “beard cover” when it hangs below my mouth and nose so I can eat and drink. It is the only method I have found so far that works. I can use my quadriplegic paws to pull the mask up over my nose when I do have to go out. It is quite a look. Yes, it is uncomfortable. Yes, the loops hurt my ears, especially since I have only found one Bluetooth that works effectively for me without having to have somebody with me 24 hours a day and because I have to wear glasses as mentioned above which, along with the mask, rest on my ear all day. Contact lenses don’t work for quadriplegics. But, let us all remember, I am trying to save you from the germs I might have and not know about because this pandemic like other versions of COVID is tricky and doesn’t let you know you’re sick until you have already spread the germs.
Now, you might want to ignore the science that would prove the defendant’s case of “direct threat” if I had to sue on your behalf. But I can’t bring a case for you unless I have a good faith belief in the claims I must prove and the defenses I must defeat. You are welcome to represent yourself pro se (meaning on behalf of yourself without a lawyer), and I wish you luck, but you still have to convince a court and/or jury of the types of facts I have discussed.
I want to make sure that CCDC would never discount anyone with an actual disability who is willing to engage in the “interactive process” with us regarding how to interact and not create a direct threat to themselves, our staff and others in the many activities CCDC might be involved with. This process is also required under the law for those seeking reasonable accommodations to laws, policies, practices and procedures. CCDC will always make reasonable adjustments and accommodations as needed to accommodate anyone’s disability. Remember, however, when you engage in the “interactive process,” you need to disclose what your disability is, how it substantially limits a major life activity, etc. You need to explain why you need an accommodation such as not wearing a mask. You can send more email messages in ALL CAPS to me if you disagree, but that’s the truth of the matter. Facts are stubborn things. Law is even more obstinate when you have to apply those stubborn facts if what one alleges is even a provable fact. You see, we lawyers have to prove facts. We don’t get to just say stuff to a jury or a judge in ALL CAPS! (Including underlining, bolding, italicizing and fancy fonts won’t sway your judge either, I promise.) We don’t win by doing so.
One of the “disabilities” people have claimed any mandatory mask policy violates includes, “I have to see your face because I read lips.” I do realize the type of mask I wear covers my mouth.
To begin with, CCDC’s policies allow multiple forms of communication that do not require face-to-face contact especially when initial meetings are involved.
In addition, we have had so many expert witnesses in so many cases involving deaf clients who have provided expert reports and/or testimony regarding the generally high level of the ineffectiveness of lip-reading.
Nevertheless, I do understand that the need to see facial expressions is helpful to some people with some communication disabilities. Of course, this assumes we can prove all the factors I listed above.
People have suggested wearing a “face shield.” Because I spent a great deal of time researching what kind of face-covering would work best for me to prevent you from getting my germs, I found out the problem with a face shield is twofold for me: (1) a face shield is really only effective when worn with a mask as well; and (2) I can’t find one that doesn’t just fall off of my head on a regular basis. The same is true of the chin cover I discussed earlier. For example, I was driving to a medical appointment and had my mask simply fall off my face into my lap as I was driving. (By the way, with adaptive equipment, for those of you who don’t know, quadriplegics can drive. For that matter, for those of you don’t know, quadriplegics can also be lawyers.) When I arrived at the medical appointment, an appointment at which I needed to be in close contact with medical personnel, I just used my quadriplegic paw to hold the mask up to my face and requested that the medical personnel help put the ear loops back around my ears. That is what I call a reasonable accommodation based on my disability under the circumstances. I assure you that the medical staff person was wearing a mask and other personal protective equipment at the time. I would not have allowed this to happen if that was not the case for the protection of both of us.
Consequences related to spreading the virus: Having been on a ventilator before, I do not want to subject anyone else to that experience if I can help it. And, as a matter of personal choice, I do not want to have to go that process again. That certainly does not mean that I will not continue representing, as I have, my friends, colleagues and clients who use various breathing devices in order to survive each day. (Many of them also have figured out ways to use facial coverings. ) It is amazing what a person with a disability can do when that person thinks through a problem that when solved might save someone’s life when that person takes a moment to think it through. Of course, that takes a little research and more time then screaming in ALL CAPS. That is what I find so personally annoying about people who say I have [fill in the blank] disability, and, therefore, I CAN’T wear a facial covering. People with genuine disabilities are the most resourceful people I have ever met. We find ways to get things done that non-disabled people simply take for granted. Like…how to drive when you can’t use your lower extremities and have substantial limitations in your upper extremities. It is a facial covering, people! Figure it out! There are very few situations, if any, I have come across that lead me to believe that there is absolutely no face covering or some other reasonable accommodation that absolutely won’t work for almost all people — those with disabilities and those without — in almost any circumstance. When the goal is saving lives, putting up with some inconvenience and creative thinking is the better approach, in my view.
I believe CCDC has gone out of its way in establishing a policy that allows reasonable accommodation for anyone alleging they can’t wear a facial covering for any number of reasons. Again, we are always amenable to tweaking the policy, but the truth of the matter is, for most of our activities, there are many other ways to communicate without subjecting our staff (or anyone with whom CCDC members interact) to individuals who do not wear masks or vice versa. The same is true for all human beings in all circumstances. Work with your local independent living center or department of vocational rehabilitation. Be creative. Be considerate of others.
And please stop LYING!
All I can say is I strongly agree with a comment made by a fellow disability rights lawyer on a listserv: “The continued co-opting of disability laws for entitled political nonsense is frustrating, to say the least, and detracts from those who really do have difficulties and need accommodation.” Michelle Uzeta, thank you!
As an individual who has lived with quadriplegia for 34 of 53 years of my life, I have absolutely had it with fakers. You know who you are. You make the law that was so extremely hard-fought-for and has changed the lives of many of us with disabilities a joke. We are sick of you.
In general, if you inquired of any non-disabled individual what the worst thing is that could ever happen to that individual or a member of that individual’s family, the ready response would be “to become disabled,” as in paralyzed, blind, deaf, etc., and then have so many of these same individuals take advantage of disability-related accommodations that are truly needed turns my stomach.
By the way, when I say those rights were “hard-fought for,” I ask anyone who has never used a wheelchair because of the disability if they would be willing to become disabled and require the use of a wheelchair and then to hurl themselves out of that wheelchair in front of buses in the busiest intersection of Denver, Colorado to protest the inaccessibility of “public” transportation?
Or, how about the numerous individuals with disabilities who literally crawled up the steps of our United States Capitol during the “Capitol Crawl” to protest the inaccessibility of government buildings. These are the activities that helped get the ADA passed.
This is why so much fakery leads me to have an extraordinarily increased lack of faith in the ability of human beings to show any empathy. Most non-disabled people will readily say they would rather be dead than disabled. (I might have even said that or thought that way when I had the accident that caused my injury when I was 19. Now, I actually think incurring a disability was the best thing that ever happened to me, but that would be another very long post.)
Beyond that, historically, individuals with disabilities are always the “first to go” (I mean — to be exterminated) when supremacists of any kind try to eliminate anyone they feel does not meet their standards for supremacy as occurred during the Holocaust. Again, you can fact check me if you like before sending your email.
This, along with the current debate regarding racial inequity all serves to provide further evidence of what seems to me like an incredible moral decline in humanity. During my 34 years as a quadriplegic and my 23 years of law practice in the area of disability rights, here are just some of the highlights of what we continue to see happening here in Denver, Colorado (once awarded for being the most accessible city in the country for people with disabilities):
(1) Individuals with strollers who demanded and continued to demand that our regional transportation system allow them to use the designated wheelchair seating sections on buses as well as light rail trains sometimes falsely claiming that the individual or the child in the stroller has a disability that requires the use of the limited wheelchair seating sections.
(2) Individuals who are willing to click the magic box on ticketing websites that states that you or someone in your party requires the use of a mobility device in order for the non-disabled individuals to get front row seats at Colorado’s beloved Red Rocks Amphitheatre (at which the only available wheelchair seating and this historic concert venue is located at the front or back of the venue and could not be placed elsewhere without great difficulty). These fakers even go as far as to use the tickets themselves and dance wildly next to those of us who use wheelchairs and need to sit there, or resell them on some other website at highly inflated prices close to the time of the show saying things like “great front row seating tickets except you might have to sit with a bunch of people who use wheelchairs (read as “cripples”).” Or they simply buy up the entire front row wheelchair seating section preventing those of us who want to attend the concert from being able to do so.
(3) Individuals who borrow a relative’s vehicle with a license plate demarcating the vehicle as one that may park in an accessible parking space or simply borrowing or stealing placards demarcating the same in order to get closer parking spaces especially at times like holiday shopping seasons when the individual has no disability whatsoever that would require the use of such a license plate or placard uses it for the purpose of being able to park closer.
(4) People who fake the need for a service animal or emotional support animal which has become rampant and caused everyone to go online and get a “vest” or fake letter from an alleged medical professional saying they have a need for the animal when there are so many individuals who have a legitimate need and the training service animals are so important to the lives of so many of the people CCDC serves. (I think many of us will have a hard time forgetting the story of the “emotional support peacock.”)
And now, [drumroll, please!] coming to you from some of the greatest fakers in the world for no other reason than politics and the inability to give a moment’s thought to how to save another person’s life or keep the individual from going through extensive, complicated medical treatment that may have extraordinary lasting consequences:
(5) People who won’t wear masks or just don’t like wearing masks who pretend that they are protected by civil rights laws and privacy laws regarding disability screaming (incorrectly) “and you are not allowed to ask me what my disability is” when there is no real disability-related reason to do so. Or those who just refuse to think of the potential consequences: I recently heard someone who is the 80-year-old relative of a friend say, “Everyone will think I’m a Democrat if I wear a mask.” Therefore, she refuses to wear a mask.
I certainly am not suggesting that there are not circumstances listed above involving an actual individual with a disability with a legitimate need, but we all know people are taking advantage. When people take advantage, it just inspires others to do the same or to believe that the accommodations that people with disabilities need are not real or are not needed. It also is a constant reminder of how despised people with disabilities are. So much so that there is an increasing number of people who simply don’t care and will do anything to take advantage of the necessary accommodations we do need. Even if it means possibly killing us.
People complain all the time that all of the “handicap parking spaces” are always empty even though I can never find a parking space that will accommodate my side-loading wheelchair ramp, so they use that as an excuse as to why they should be allowed to park there when there are no other spaces available.
I hope everyone who is using an alleged and fake disability as a reason for not wearing a mask stays well and healthy and survives this pandemic. You are doing your fellow human beings an enormous disservice. I also wish you well in surviving both this pandemic and the rest of your life without having to incur the types of disabilities you are faking to take advantage of our needed accommodations. Personally, I have absolutely no problem living life as a quadriplegic. What I do have is a serious problem with people who take advantage of laws that have changed my life and allowed me to help change the lives of other individuals with disabilities dramatically despite your utter inhumanity.
Kevin W. Williams
CCDC Civil Rights Legal Program Director
firstname.lastname@example.org (any email messages containing ALL CAPS addressing the topics raised herein will be deleted immediately without being read)
P.S. And if this is what it takes to survive the pandemic, so be it!
Photograph of Kevin Williams with medical gloves stuck on his hands with toilet paper wrapped around his neck, a mask as described above on his face and a bottle of gin and a can of spray disinfectant in his lap.
For Immediate Release
May 27, 2020:
DENVER, Colorado—The Colorado Cross-Disability Coalition (CCDC) is Colorado’s largest statewide, disability-led, disability rights organization. CCDC advocates for social justice on behalf of people with all types of disabilities (cross-disability). This Statement is made jointly by CCDC’s Executive Director, CCDC’s staff, and CCDC’s Civil Rights Legal Program. This Statement is not intended to be construed as legal advice. As set forth below, all information regarding how to proceed under the circumstances is made available by the United States Department of Justice (DOJ).
CCDC was founded 30 years ago to make sure that the Americans with Disabilities Act (ADA) became real in Colorado. To that end, we have been involved in both education and enforcement regarding the ADA. CCDC has been aggressive about requiring governments and businesses to make reasonable modifications to policies, practices, and procedures when necessary to enable people with disabilities to have equal access to any public accommodation. A public accommodation is any place where the public can engage in activities such as stores, hotels, movie theaters, restaurants, golf courses, etc. Non-profits like CCDC’s office and meeting areas are public accommodations. (All information about what the ADA says is publicly available on the DOJ website www.ada.gov.) The ADA also applies to state and local governments (including special districts), transportation, and employment.
We have learned that people who object to requirements to wear masks or face coverings are advising followers to state that they have a disability and that it is a violation of the ADA to require that individuals wear a mask. There are individuals with disabilities who cannot use masks at all or who can but only with great difficulty. Securing a mask may be difficult to impossible for individuals who may not be able to get a mask on and off independently and lack constant support from a caregiver or other person and for individuals with facial anomalies. However, we are aware there are others invoking this rule without cause.
It is our position that businesses and governments ARE allowed to deny entrance to people who are not wearing masks. In fact, we encourage it.
Public accommodations must also protect their employees and other customers. In fact, the DOJ already has spoken on the issue of the fraudulent claims by people who simply do not want to wear a mask and claim they have a disability as the reason why. The DOJ position states the following: “The Department urges the public not to rely on the information contained in these postings and to visit ADA.gov for ADA information issued by the Department.” See *COVID-19 ALERT: Fraudulent Facemask Flyers* (DOJ COVID-19 ALERT). Furthermore, the ADA regulations in the section that governs public accommodations speak to this issue:
Sec. 36.208 Direct threat.
(a) This part [Title III of the ADA] does not require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.
(b) Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.
(c) In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures will mitigate the risk.
If a person claims that they are unable to use a mask, the public accommodation must make reasonable efforts to accommodate the customer in a different way. This must not involve requiring staff to take unsafe risks. A reasonable person can conclude that behaviors that are contrary to local health department guidelines are unreasonable and unsafe. Some examples of accommodations or modifications might include:
CCDC recommends that businesses post a sign outside that says “Masks Required” and also provides a phone number and email address for someone to contact should they be unable to use a mask. Doing this will eliminate the need for an employee to have to debate the situation with an un-masked person.
“We want you to protect your employees. Some may have disabilities themselves, but more importantly, they are our neighbors, friends, and the essential workers that keep our community going. Why would anyone want to risk harming the people that they want to provide service to them?” Julie Reiskin, Executive Director
No, you cannot. You can ask why they cannot wear a mask, but it is irrelevant. You do not need to let them in.
No. Generally, requiring an individual to prove a disability does not occur a complaint is filed and you are in court for an ADA lawsuit or before the DOJ for an administrative complaint. Remember, the person claiming a disability has the burden of proving their disability meets the strict definitions of the ADA to the court. If the individual who does not want to wear a mask does not have a disability but claims that they do and if the claim is fraudulent, the individual will lose in court. It is a risk. Fraudulent lawsuits have consequences. If someone asks for a modification of policy that is significant or maybe an undue burden, the public accommodation could ask for proof, but we recommend you avoid this and consult with an attorney before doing so. Having a condition or diagnosis does not necessarily mean that the person has a disability under the ADA. What meets the ADA definition of an individual with a disability is complicated and requires proof of a substantial limitation of a major life activity and more. All of this can be found on the DOJ website referenced above.
That is irrelevant. Whether an individual is an individual with a disability is a legal definition, not a medical diagnosis.
A public accommodation must make reasonable modifications to its policies, practices, and procedures. You need not fundamentally alter your business model or go to such extreme expense that it would cause your business undue hardship. A large business with branches would need to consider the entire company’s, not just one location’s, resources. Under no circumstances must you ever put your employees or customers in danger under the direct threat analysis.
This is a reasonable request, and you should support this. Check with the Occupational Safety and Health Administration for employee safety requirements. Also, you must follow state, city, or county orders that govern wearing a mask in a public location. You might violate the law by not wearing a mask. See also the DOJ COVID-19 ALERT referenced above.
Instruct your staff to request that the customer secure the mask appropriately or leave. Confirm your staff knows to maintain appropriate social distancing restrictions of 6-feet as recognized by the Centers for Disease Control and other health authorities.
No, you are not required to provide personal services like this. If you or your staff want to do so you may offer and then listen to the individual as they instruct you on how to do this. However, any staff person who feels compromised or uncomfortable must be permitted to not provide this level of assistance.
While there appear to be people blithely making up disabilities, there are people with real disabilities, and the rule of reasonable modification of policies always applies with the caveats set forth above.
Very few Deaf people read lips as it is rare but sometimes effective. However, some people who are hard of hearing do use a combination of lip-reading and hearing aids to understand others. If you can have at least some employees use a mask with a clear plastic panel to make the mouth visible, that will be appreciated. A face shield might be appropriate under the circumstances. You should conduct research regarding available types of masks and face coverings to ensure they are effective for the purpose of preventing the spread of the virus.
If you have signage, please have Braille underneath.* Also, have available paper flyers in very large print (20 point font or higher) with the phone number to call for assistance. (Dial 711 for a Relay Operator)
While some individuals may not be able to understand why they have to wear a mask or have extreme discomfort when something is over their mouth, the health risks of allowing people in who are not masked outweighs the benefit. Make sure not to challenge their experience or act like you do not believe them if they say they cannot wear a mask.
Some people have facial structures that make mask-wearing impossible or may be unable to secure a mask if it falls off. For most of these individuals, the risk of serious illness or death from contracting COVID-19 is quite high, particularly for employees or other customers who already have respiratory problems and/or other disabilities that compromise their immune systems and are likely to understand mask policies.
People with speech disabilities may be a bit harder to understand when wearing a mask. Feel free to ask them to repeat themselves if you do not understand. Most people with speech disabilities will be happy to repeat themselves. If they are unwilling to do so, they are not assisting you in the process of facilitating communication. Therefore, they should not be permitted to enter.
“I went into service because I wanted to protect my country and help others. I would never want to risk un-knowingly spreading this disease now even if my PTSD makes it harder to wear a mask. The mask makes me feel as though I am deployed again and in my decontamination suit.”
Michelle McHenry-Edrington Advocacy Coordinator and Air Force Veteran and her service dog, Edgar
“As a quadriplegic with limited hand function, I cannot re-secure most masks if it slips off. I understand I may need to leave a store or find another way to shop. That is an inconvenience. However, as a quadriplegic with reduced breathing capacity and a compromised immune system, I believe it is very likely I would not survive if infected with COVID. As a result, I will do everything in my power to ensure that I have a mask on so I do not infect you. It is a matter of simple respect and kindness for other people and should not be made a political issue or an issue of faking disability for getting an accommodation.”
Kevin Williams, Civil Rights Legal Program Director
“I know I am hard to understand sometimes. I am never offended if you ask me to repeat myself.”
Dawn Howard, Director of Community Organizing
THE FOLLOWING PROVIDES AND EXPLANATION OF THE LEGAL BACKGROUND REGARDING DISABILITY DISCRIMINATION THAT MAY OCCUR BY PLASMA CENTERS, INCLUDING CSL PLASMA:
According to their website, CSL Plasma states the following with respect to “Who Can Donate?”
Anyone in good health, 18 or older, who weighs at least 110 lbs, have had no tattoos or piercings within the last 12 months, meets our eligibility and screening requirements, has valid identification and a permanent address is eligible to donate plasma.
To maintain high health standards, a member of our medical staff gives every potential donor a screening examination, and gathers medical history information. This is for the donor’s safety as well as the quality of the product that will be made from plasma, and we assure the utmost respect to donor privacy.
Both the requirements regarding “good health” and the required “screening examination” may very well discriminate against people with disabilities, even though they may have been put in place with the best of intentions. These phrases often serve as buzzwords for disability discrimination. For example, what does “good health” mean and who gets to decide? Also, as explained below, “screening examinations” may screen out letting people with disabilities donate plasma even when an individual’s disability has nothing to do with the ability to provide a plasma donation safely.
Plasma centers like CSL Plasma are places of public accommodation under the Americans with Disabilities Act (“ADA”) and the Colorado Anti-Discrimination Act (“CADA”) and are not permitted to discriminate on the basis of disability. As such, CSL Plasma cannot refuse to allow you (if you are an individual with the disability) to donate and receive payment for doing so on the basis of disability except under very limited circumstances. If you have already contacted a CSL Plasma center in the past and have been denied the ability to donate plasma based solely on the basis of your disability or if you call now to try to make a donation, here are some key things to remember:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who ow/ns, leases (or leases to), or operates a place of public accommodation.
Both Title III of the ADA and the CADA apply to the owners of public accommodations and/or businesses that lease a place of public accommodation or operate a place of public accommodation, although the CADA refers to “any person” who discriminates whereas the ADA only applies to entities that discriminate, not persons. You should also be aware that Title III of the ADA prohibits an entity from engaging in contractual, licensing or other arrangements that result in discrimination on the basis of disability as well. The CADA is intended to apply all of the same standards and defenses as the ADA. As a result, it is possible, for example, that the CADA incorporates standards pertaining to contractual licensing and other arrangements that result in discrimination. Title III of the ADA prohibits many forms of discrimination some of which are very direct and others are much more subtle.
And now for some minutia or “getting in the weeds” of ADA Title III and CADA claims:
An individual or class of individuals on the basis of disability cannot be denied the equal opportunity to participate in plasma donation; nor can an individual or entity like CSL Plasma use “standards or criteria or methods of administration” that have the effect of discriminating on the basis of disability or perpetuate the discrimination of others (for example, a standard that prohibited all people who are blind or deaf or who have any other form of disability that is not specifically related to the individual’s ability to donate plasma). Title III also prohibits imposing “application of eligibility criteria ” that screen out or tend to screen out an individual with the disability or any class of individual with disabilities from participating in plasma donation and prohibits failing to “make reasonable modifications in policies, practices or procedures” when such modifications are necessary to afford an individual with disabilities and equal opportunity to participate in plasma donation or due to a failure to “provide appropriate auxiliary aids and services” (like sign language interpreters if necessary for effective indication) in order to participate in plasma donation. Modifications of policies, practices and procedures under Title III of the ADA may also include requiring that a plasma center not discriminate against an individual with the disability who uses a service animal. Under the CADA, an individual with a disability has the right to be accompanied by a service animal and even a trainer of a or an individual with the disability accompanied by an animal that is being trained to be a service animal is permitted to have the service animal in or service animal in training in any place of public accommodation.
In addition, plasma centers are required to be fully accessible to people with disabilities if they are newly constructed facilities under the ADA if they have been altered or renovated in a significant way, and they must remove architectural and communication barriers when doing so is readily achievable which means without difficulty or expense (like installing accessible parking spaces and ensuring that equipment and rooms are made accessible when doing so is not complicated or expensive). The CADA also addresses design and construction issues with respect to the requirements that it be construed to apply the same standards and defenses available under the ADA reference above and also in its remedial provisions.
For people with mobility disabilities, there is specific guidance issued jointly by the United States Department of Justice, Civil Rights Division, Disability Rights Section and the United States Department of Health and Human Services Office for Civil Rights (“Joint Guidance”). This guidance addresses requirements related to the accessibility of medical equipment and also the need to accommodate individuals with such disabilities. See “Americans with Disabilities Act: Access To Ethical Care for Individuals With Mobility Disabilities.” Here are just some examples that relate directly to this guidance as well as prohibitions set forth in the policies of plasma clinics regarding transferring individuals with mobility disabilities:
Staff should be protected from injury, but that doesn’t justify refusing to provide equal medical services to individuals with disabilities. The medical provider can protect his or her staff from injury by providing accessible equipment, such as an adjustable exam table and/or a ceiling or floor based patient lift, and training on proper patient handling techniques as necessary to provide equal medical services to a patient with a disability. (See Part 4 [of the document] for more information on this equipment.)
To provide medical services in an accessible manner, the medical provider and staff will likely need to receive training. This training will need to address how to operate the accessible equipment, how to assist with transfers and positioning of individuals with disabilities, and how not to discriminate against individuals with disabilities. Local or national disability organizations may be able to provide training for your staff.
Therefore, it might very well be considered discrimination on the basis of disability if a plasma clinic has a policy or standard that requires an individual who uses a wheelchair who wishes to donate plasma to be able to transfer herself to a device such as an examination table or chair used for plasma donation independently and without any assistance from the staff working at the plasma center.
Furthermore, it is very important that plasma centers do not discriminate on the basis of myths, fears, and stereotypes associated with disabilities as often occurs with respect to people with cognitive or psychiatric disabilities. Therefore, if a plasma center prevented someone during its screening process from donating plasma because of fears or stereotypes related to the individual due to a condition that causes muscle spasms, seizures or psychiatric disorders, all of these actions may constitute discrimination under Title III. Likewise, if a plasma center refused to allow someone to be a plasma donor because the individual had a psychiatric disability based on a fear that the individual might attempt to donate plasma without having taken his or her medications might very well constitute discrimination on the basis of disability.
There are exceptions to all of the forms of discrimination that are prohibited under Title III of the ADA set forth above, but they are very limited. For example, if allowing the individual to donate plasma would cause an “undue burden to the plasma center, or if the individual somehow constituted a direct threat to the health or safety of others even if the behavior that caused that direct threat was related to disability and could not be accommodated reasonably, the plasma center may refuse to allow the individual to donate plasma. Even when a plasma center falls under the ADA provisions addressing newly designed and constructed facilities, there might be an exception for full and complete accessibility if it is structurally impracticable to make the facility accessible and in compliance with the requirements for the Standards for Accessible Design. There may be other disability-related reasons why an individual might not be able to donate plasma (for example, if an individual had some blood-related disease that would interfere with providing plasma, this might constitute an exception). Nevertheless, as said, the exceptions are very limited. As an example of the limitations on the exceptions, making a determination as to whether allowing an individual with a disability to donate plasma constitutes an undue burden for the facility at issue, many considerations must be made like determining resources and capabilities of any parent company involved with the facility in question. Another example relates to the structural impracticability defense related to designing instruction. A public accommodation like a plasma center would have to prove that the conditions under which the facility was built made it almost nearly impossible to build it in for compliance with the ADA if it falls under the newly designed and constructed facilities provisions.
Therefore, as set forth in Part 1 of this Alert, please let us know if you have experienced discrimination on the basis of your disability by CSL Plasma, or, as set forth in Part 2 of this Alert if you wish to contact CSL Plasma and donate plasma, and you experience discrimination on the basis of disability as a result, please do contact Kara Gillon at the email address or telephone number listed in Part 1 of this Alert.
 42 U.S.C. § 12181(7)(f) (defines “public accommodation” to include the office of a healthcare provider or other service establishment); Colo. Rev. Stat. § 24-34-601(1)(defines “place of public accommodation” to mean a place of business engaged in sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering sales to the public or public facility of any kind whether indoor or outdoor); Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227, 1234 (10th Cir. 2016) (holding that a similar plasma donation center is a public accommodation under the ADA).
 42 U.S.C. § 12182(a); Colo. Rev. Stat. § 24-34-601(2)(a) (referencing the prohibition of discrimination on the basis of disability by any “person” defined elsewhere in the statute, Colo. Rev. Stat. § 24-34-301(5)(a), as including limited liability companies, partnerships, associations, corporations and other entities similar to those identified in Title III of the ADA).
 42 U.S.C. § 12182(1)(A)(i)-(iii).
 Colo. Rev. Stat. § 24-34-802(4); Colo. Code Regs. § 708-1:60.
 Id. §§ (b)(1)(A)(1) & (b)(1)(D).
 Id. §§ (b)(2)(A)(i)-(iii).
 28 C.F.R. § 36 302(c)(1).
 Colo. Rev. Stat. §§ 24-34-803(1)(a) & (2)(a) & 24-34-804(1). Both the ADA and the CADA place some limitations on the use of a service animal (and/or under the CADA a service animal in training). 28 C.F.R. §§ 36.302(c)(2), (4), (5) (the animal must be in the control of its handler, the animal must be housebroken and public accommodations are not responsible for the care or supervision of service animals); Colo. Rev. Stat. § 24-34-803(4)(requiring that a service animal or a service animal in training must be under the custody or control of the individual wh the disability or the trainer).
 42 U.S.C. §§ 12183 (applicable to new construction and alterations) & 12182(b)(2)(A)(iv) (applicable to the requirement of existing facilities — those designed and constructed before the enactment of the ADA — to remove structural and communication barriers when doing so is readily achievable).
 Colo. Rev. Stat. §§ 24-34-802(b)-(c).
 A similar analysis would be applied to a blood donation center or plasma donation center.
 The guidance provides direct contact information for the ADA Website and the US Department of Justice as well.
 28 C.F.R. pt. 36, app. C at 706 (a person who is not allowed into a public accommodation because of the myths, fears, and stereotypes associated with disabilities would be protected under the ADA as would an individual who was denied services because the public accommodation feared a psychological condition constituting a disability might result in problems if the individual was not medicated properly).
CCDC MEMBERS, IF YOU HAVE NOT ALREADY ATTEMPTED TO DONATE PLASMA TO CSL PLASMA (See all locations set forth in Part 1 of this Alert):
What could be better than that? A trifecta. CCDC members and friends, would you like to earn up to 400 extra dollars per month on an ongoing basis and provide an enormously needed service to help others in need? Why not donate plasma? Currently, plasma centers are designated as a “Critical Business” that will remain open for purposes of making donations under the current Colorado Order and PHO (see Part 1 of this Alert for links to these orders) as well as under the U.S. Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency because their services are needed desperately by those who need plasma. In addition, CSL Plasma advertises that it is taking extreme precautions to follow all COVID-19 protocols in order to ensure the safety of those of you who want to help others who desperately need donated plasma. CCDC certainly wants to ensure that all of its members and our families, friends and colleagues stay safe and healthy. Finally, CCDC wants to make sure that CSL Plasma is not discriminating against people with disabilities and needs your help to investigate whether this is happening.
We all know everyone is struggling both with worries about their own physical health and the physical health of their friends and family, and we all are dealing with economic circumstances that also provide us all with a great amount of stress. For many, economic problems are enormous. On top of the physical health and economic concerns that weigh heavily upon all of us, our current circumstances are affecting many people’s mental health as well.
One way we can all benefit others as well as earn some income during these stressful economic times is to donate blood and plasma. Because people are staying at home, they are much less likely inclined to provide needed donations of blood and plasma to those centers that will make it available for life-giving and life-sustaining procedures for so many people throughout our state.
Several recent news reports provide some examples regarding medical needs in Colorado, and plasma donations are needed now more than ever.
CCDC is investigating CSL Plasma, because there is reason to believe that this entity is discriminating against people with disabilities and preventing them from donating plasma as a result. Even though people with disabilities want to do their part and help others as well as earn needed income in the process, they might be turned away from doing so for reasons resulting from disability discrimination that could very well violate the Americans with Disabilities Act (“ADA”), the Colorado Anti-Discrimination Act (“CADA”) and possibly other disability rights laws.
You can earn up to $400 for donations each month and help save other people’s lives in the process. Even though you might have already received or soon will be receiving a tax refund and/or a stimulus check, for many of CCDC members with disabilities, this additional money can really help especially those on lower incomes and those who are currently not working because of the pandemic. By doing so, you can provide a potentially life-saving service for so many people who are either hospitalized or have conditions requiring them to need plasma transfusions for reasons that may or may not be related to the current pandemic. This needed service for others can help CCDC members with disabilities with their needed extra income.
So, by donating plasma, you can serve three very meaningful purposes: (1) You can help yourself make it through these difficult economic times; (2) you can help others who so desperately need plasma to survive; and (3) you can help CCDC with its investigation regarding whether this plasma center is discriminating on the basis of disability. This is an extremely rare win-win-WIN situation!
So many CCDC members (many of home live on lower and fixed incomes) who have always stepped up to help others in need in the past have asked us at CCDC, “What else can I do to help fellow Coloradans during this horrible and unexpected crisis?” This is one more critical time and one more urgently needed way to help. This very well may be the most critical time we have ever seen with respect to all of us needing to help each other. Clearly, donating needed plasma will help others stay alive as we all work to help each other get through the pandemic together.
Furthermore, CCDC has become aware and is very concerned that the entity that runs these plasma centers may be discriminating against people with disabilities who want to serve others in helping to donate plasma. We have reason to believe that these plasma centers may be prohibiting many people with disabilities, solely on the basis of disability, from donating plasma.
As set forth in Part 1 sent earlier, please let us know immediately (1) if you have tried to donate plasma at one of the Colorado centers listed in Part 1 And available on the CSL Plasma website for Colorado locations, and, in doing so, if you have been denied the ability to donate plasma for a disability-related reason (the appropriate contact information and what information you should provide is all set forth in Part 1); or (2) if you would be willing to try to donate plasma to assist others and earn some income during these trying times. You can find the plasma center near you in the state of Colorado and contact the facility of your choice if you would like to donate plasma. Their website provides other useful information you will need as well.
 Please keep in mind not every payment will be $400.00. That is the maximum amount an individual might receive for donating plasma in a given period of time. According to the CSL Plasma Frequently Asked Questions page:
You can get paid up to $400 each month by donating life-saving plasma. This is applicable for eligible, qualified new donors. Fees vary by location. In addition, you can also receive points (called iGive) for your donations. iGive points can be redeemed for extra cash deposited (loaded) right to your reloadable prepaid card. Check with your preferred CSL Plasma donation center to see if they are participating in any other special promotions.” In addition, The U.S. Food & Drug Administration (FDA) regulations state that the maximum frequency you can donate plasma is once in a two-day period – and, no more than twice in a seven-day period.
 See CSL Plasma Corona Virus page and Safe Passage letter; as stated in Part 1 of this Alert, CSL Plasma centers also fall under the “Critical Business” exception to the Stay at Home Order executed by the Colorado Governor and as described by the Colorado Department of Public Health and Environment in its implementation of the Order § III(C) which excludes businesses engaging in healthcare operations and provides a non-exhaustive list, including businesses like blood banks and other healthcare operations like plasma donation centers.
 See, e.g., “Denver man with rare disease is asking people to donate blood during the stay-at-home order,” Denver Post, https://www.thedenverchannel.com/news/coronavirus/denver-man-with-rare-disease-is-asking-people-to-donate-blood-during-the-stay-at-home-order (last visited Apr. 7, 2020); “Local family seeks plasma donor for life-saving COVID-19 treatment,” Fox31 Denver, https://kdvr.com/news/coronavirus/local-family-seeks-plasma-donor-for-life-saving-covid-19-treatment/ (last visited Apr. 7, 2020); “Colorado hospital calling for donors to help with experimental, ‘promising’ coronavirus treatment: Convalescent plasma treatment is being used at Children’s Hospital Colorado,” ABC News, https://abcnews.go.com/Health/colorado-hospital-calling-donors-experimental-promising-coronavirus-treatment/story?id=69951910 (last visited Apr. 7, 2020).
This three-part Alert will be followed by Part 3, the final installment of the Alert pertaining to the applicable law and how disability discrimination might occur related to those who wish to donate plasma. Part 1 sent earlier explains who to contact and what information you should provide if you feel you have experienced disability discrimination as a result of contacting CSL Plasma.
HAVE YOU EXPERIENCED DISCRIMINATION ON THE BASIS OF DISABILITY AND ATTEMPTING TO DONATE PLASMA TO A CSL PLASMA CENTER IN COLORADO BECAUSE OF YOUR DISABILITY?
For example, were you denied the opportunity to donate plasma and receive payment for doing so for a disability-related reason? If so, our Civil Rights Legal Program needs to hear from you as soon as possible. Please contact Kara Gillon at email@example.com or (303) 660-8254. Email is best as the Colorado Cross-Disability Coalition (“CCDC”) staff are all following the current EXECUTIVE ORDER D 2020 024, AMENDING AND EXTENDING EXECUTIVE ORDER D 2020 017 ORDERING COLORADANS TO STAY AT HOME DUE TO THE PRESENCE OF COVID-19 (“Order”), entered April 6, 2020, as well as the UPDATED PUBLIC HEALTH ORDER 20-24 IMPLEMENTING STAY AT HOME REQUIREMENTS (“PHO”), dated March 26, 2020, and issued by the Colorado Department of Public Health & Environment. Most of us are working at home unless otherwise necessary. CCDC is permitted under these orders to have staff in the office, but we are working at home unless otherwise necessary.
WHAT DO WE NEED FROM YOU? We need to know as much precise information as possible which may include the following: (1) when you made the contact with any of the CSL Plasma Centers located in Colorado (the previous link provides all addresses and other necessary contact information, also listed below); (2) all reasons why you believe you were discriminated against on the basis of your disability; (3) who you talked to and when and what was said.
Leave a good time to contact you (again preferably by email) and your name, telephone number, email address and whether you are a CCDC member already.
If you would like to become a CCDC member, membership is free and can be extended to any individual who believes in social justice for people with all types of disabilities. You can become a member easily by logging on to the CCDC Membership Website Page. By becoming a member, you may elect to receive important information regarding all activities of CCDC which are especially important in light of the current pandemic.
This is Part 1 of three parts to be included in this Alert.
Part 2 of this Alert will provide you with information regarding whether you would be interested in being a plasma donor which accomplishes three important purposes: (1) Assisting individuals who are in desperate need of plasma donations received those donations during this time of crisis; (2) helping you obtain some additional needed financial resources during this economic crisis; and (3) assisting CCDC with its investigation of this issue and the possibility of disability discrimination.
Part 3 of this Alert will provide you with the legal background for the types of disability discrimination individuals might be experiencing as a result of attempting to donate plasma at CSL Plasma centers.
WE ARE CONDUCTING AN INVESTIGATION AND NEED TO HEAR FROM YOU AS SOON AS POSSIBLE.
Colorado CSL Plasma locations:
A Denver police officer parked a marked patrol vehicle partially in a handicap spot at the headquarters for the Colorado Cross-Disability Coalition last month, blocking access to a van driven by the coalition’s legal director, who uses a wheelchair. Continue reading “Denver police officer blocks handicap spot at disability advocates’ HQ during emergency call”
by: Evan Kruegel for KDVR Fox 31 Posted: Mar 5, 2020 / 10:12 PM MST / Updated: Mar 5, 2020 / 10:12 PM MST
DENVER (KDVR) — The Denver Police Department has issued an apology after an officer was photographed parking in a handicap spot during an emergency call.
That handicap-accessible spot happened to be in front of the Colorado Cross-Disability Coalition, which specializes in advocating for those with disabilities.
Photos show the officer taking up a portion of the handicap spot as well as the majority of the “access aisle,” used by many at the building to get in and out of vehicles. Continue reading “Denver officer photographed blocking handicap spot at disability advocates’ headquarters”
By Matilda Coleman- March 6, 2020 for Upnewsinfo.com
A Denver police officer parked a partially marked patrol vehicle in a disabled place at the Colorado Disability Coalition headquarters last month, blocking access to a van driven by the coalition’s legal director, who uses a wheelchair.
Legal director Kevin Williams said Thursday that he wanted to draw attention to the incident because he routinely receives complaints about Denver police parking in places for disabled people. Continue reading “Denver Police Park in place for the disabled at the headquarters of the disability advocacy group”
The Distinctions between Service Animals, Emotional Support Animals and Pets
Written by Andrew Montoya
Most people like animals of all sorts. I mean, what’s not to like about their furry faces, precocious personalities, and constant companionship? People love their animals so much, in fact, that Colorado has become increasingly “pet-friendly,” with restaurants placing water bowls in patio areas and carrying menu items intended for pets, and other establishments like stores and office buildings permitting animals where they once were forbidden. Usually, those animals are dogs, but there has been a marked increase in recent years of other types of animals accompanying folks in public, including snakes and lizards, birds both large and small, and other mammals more often seen at the Stock Show or Denver Zoo. Although there are some safety and sanitary guidelines that prohibit pet-friendly policies, generally restaurants, stores, and other such spots are permitted to allow animals if they so desire. Nevertheless, for some folks, that’s just not good enough. Some of those people have discovered that claiming a disability and purchasing a cute little vest or tag with words like “service animal” or “assistance dog” can not only get their four-legged friends in the door but also can save on things like fees and deposits. Meanwhile, websites boast that, for a low, one-time fee, people can purchase vests, tags, and even letters from medical professionals substantiating the claimed disability. That is, of course, not to say there aren’t legitimate service animal and emotional support animal users who also might have such vests, tags and documentation (even though vests, tags and documentation aren’t required under the law), but the proliferation of online shops has caused many to begin to question service animal users, especially those with invisible disabilities, and has led to conflict between inadequately trained pets and highly trained service animals. That conflict, coupled with the rise of news reports of atypical emotional support animals (or ESAs), such as peacocks and squirrels, being taken on airplanes, has even led to proposals for new laws and new rules at both the state and federal levels.
Under the ADA, a service animal is a dog—and only a dog—that is specially trained to perform tasks for a person with a disability. The ADA regulations also permit miniature horses as a reasonable modification, but dogs are the only specifically identified service animals. Under the ADA, service dogs are permitted to accompany individuals with disabilities in most situations with very limited exceptions, such as sterile operating rooms in hospitals, and are exempt from many fees often associated with pets, such as hotel fees and deposits. In addition, under the ADA, a public entity under Title II and an operator of the place of public accommodation under Title III are only permitted to ask two questions about an animal: (a) whether the animal is a service animal and (b) what tasks the animal performs for the person with a disability. If the answers to both of those questions are yes, then the service animal must be permitted. Moreover, those public entities and places of public accommodation are prohibited from asking for proof of the person’s disability or proof of the animal’s status or training. Although an individual with a disability may have to prove disability if the individual brings a claim or lawsuit later alleging discrimination because of the denial of a service animal, at the time the individual with a disability visits a place of public accommodation or public building operated by a public entity, the ADA only requires answers to these two questions.
Both the FHAA and ACAA, on the other hand, recognize the right of an individual with a disability to have ESAs, and both laws permit a much greater variety of animals than just dogs (or miniature horses). ESAs provide companionship, relieve loneliness, and sometimes help with depression, anxiety, and certain phobias, and neither of these two laws requires the animal to have specialized training. Both laws also often exempt individuals with disabilities with ESAs from many fees associated with pets. To take a slightly deeper dive, much like how the ADA recognizes miniature horses as reasonable modifications, the FHAA also views service animals and emotional support animals as reasonable accommodations. That is, housing providers are required to modify their “no animals” policies to permit both service and emotional support animals for people with disabilities. Although such housing providers may request evidence of the claimed disability if it is not obvious, there are not many regulations or requirements related to animals under the FHAA.
The ACAA, by contrast, has some hoops for travelers to jump through, including requirements that the passenger provide very specific documentation related to the disability and the animal. The ACAA also specifically permits air carriers from prohibiting snakes, ferrets, rodents and spiders, and other animals that are too large to fit safely in the cabin.
Now get ready for the twists and turns, as we walk through a hypothetical scenario. A college student, let’s call him Michael, has an emotional support dog, Rex, that lives with him in his apartment. Michael travels to another city for a vacation. Michael is permitted to keep Rex in his apartment pursuant to the FHAA, but Michael has to put Rex in a crate in order to travel in a cab to Union Station in Denver because Rex isn’t a service animal and that cab is covered by Title III of the ADA. Michael can take Rex out of the crate once at Union Station, however, because Union Station is “pet-friendly.” Once the A Line train arrives to take Michael and Rex to DIA, Michael again has to put Rex back in the crate for the trip. DIA, however, is also “pet-friendly,” so once at the airport, Michael frees Rex again and stops at one of the airport’s new $100,000+ pet relief areas to give Rex a much-needed pit stop. After washing up, Michael decides to stop off at one of DIA’s many restaurants for a quick bite to eat. Unfortunately, though, that restaurant doesn’t permit non-service animals, so it’s back in the crate for poor Rex. After packing up a doggy bag, it’s off to the terminal for Michael and out of the crate once again for Rex.
Rex can stay out of the crate while on the plane because Rex is a documented ESA and is neither an unusual type of animal nor too large. However, once in the air, Rex begins to get a bit jumpy and starts barking at another passenger’s emotional support rabbit, so the flight crew asks Michael to crate Rex until he calms down, which, fortunately, doesn’t take long. A short while later, Michael and Rex land in their destination city and head off to rent a car to drive to their hotel. The rental car company, however, has a sign on the door that reads “service animals only,” so Michael puts Rex back in the crate while he goes inside. The desk agent, however, says that she is allergic to dogs and requires Michael to leave Rex outside entirely, commenting that there will be a significant cleaning fee when Michael returns the car if there is any dog hair left inside as well. Suffice it to say, Michael and Rex leave pretty quickly, without renting a car. Michael then pulls up a rideshare app and orders a vehicle. The driver shows up but, upon seeing Rex, says “no dogs” and drives away. A kind passerby who saw what happened informs Michael that there is a city bus that goes within a couple of blocks of his hotel, so Michael sticks Rex back in the crate and hops on board. Michael is able to uncrate Rex for the walk to the hotel but puts him back in the crate to check in. Unfortunately, Michael didn’t realize that the hotel charged an extra $50 per night as a pet deposit, which renders him broke for the remainder of his trip.
As that hypothetical illustrates, the patchwork of legal obligations from place to place varies a lot, making it pretty difficult to determine what animals are permitted where (and why). It’s easy to see, though, why some people try to pass off their pets as ESAs. Even though ESAs aren’t permitted everywhere, they are permitted in more places than pets (despite the current “pet-friendly” trend) and sometimes without a fee. Contrasting poor Michael’s and Rex’s experiences with those of a service dog user, who is permitted to keep the dog in all of these places Michael and Rex visited (and without being subject to any additional fees), it’s also easy to see why some people claim untrained animals and ESAs as actual service dogs. Although it is easy to understand why folks do this, it’s equally important to understand why doing so is harmful to real service animals and ESAs.
Service animals are critical supports for people with disabilities, allowing for greater independence with an awesome companion in tow. True service animals are generally very well-trained and very well-behaved, so much so that you might not even notice that the dog is there unless it is needed. A guide dog for an individual who is blind and a dog trained to assist an individual who uses a wheelchair to pick things up and assist with opening doors are examples of commonly used service animals. ESAs and pets, on the other hand, often do not receive the level of training that service animals do, and can exhibit less than appropriate behaviors. Things like excessive barking or jumping up (unless these are signals the dog uses to alert their handlers) and attempting to eat from a table can be enough to give the general public pause and put questions in their minds about other ESAs and service animals they may encounter in the future. Inadequately trained animals also can cause significant harm to service animals by interfering with, distracting, or even attacking trained animals. Although there is liability under Colorado state law for attacks on service animals, those sorts of attacks have caused some people with disabilities to have to retire their service animals early, costing them thousands of dollars and potentially months of independence until a different animal is located. And even then, the service animal user is left hoping that the same fate doesn’t befall the new dog. Because of all of the potential harms that can occur to true service animals, even by inadequately trained ESAs, the “pet-friendly” trend can be somewhat alarming. What’s more alarming, though, is the proliferation of websites offering certifications, credentials, letters from medical professionals (who have never personally interacted with the “patient”), and vests for a modest one-time fee. Despite efforts at both the state and federal levels to curb such abuses, these efforts have yet to produce results. It appears inevitable that more restrictions are coming for air carriers, as the Department of Transportation issued a Notice of Proposed Rulemaking on February 5, 2020, related to animals on airplanes. The Colorado Legislature was also considering additional protections for people with disabilities and their service animals and ESAs, but it is unclear whether those efforts will gain traction. Nevertheless, it is incumbent upon all of us pet owners, ESA companions and service animal users to keep all of our fuzzy friends safe and happy. As much as your own Rex might give you those infamous puppy dog eyes, unless Rex is an adequately trained pup, it might be best to just leave him home because failing to do so could result in thousands of dollars in liability, but more importantly, in a person with a disability losing their best friend and their independence.