by CAROL C. LUMPKIN and SHAWN HOGUE
COVID-19 has fundamentally changed the way we live, work, communicate, and travel. The hospitality industry has been one of the hardest hit by the pandemic.
We applaud the industry for focusing significant energy addressing this crisis, but as things open back up and individuals hit the road to escape quarantine, it is important to remain mindful of resurgent litigation.
As hotels reopen, they have implemented social distancing and other mitigation measures in order to protect their employees and customers. While these steps are essential, hoteliers also need to focus on other legal issues that are showing an uptick in activity. Below, we provide the top five areas to consider as you move forward with getting back to business.
AMERICANS WITH DISABILITIES ACT (ADA):
Hotels should review their ADA compliance because this area has not had a decrease in activity during the pandemic. Here are a few items that should be considered.
- Websites: While hotel properties were put on hold, website accessibility litigation was not. Hotel management needs to ensure that their websites are accessible to individuals with disabilities which includes identifying and describing the accessibility features at the hotel itself. A guest with disabilities who visits the website should be able to determine whether or not the hotel is capable of meeting their specific needs, and they also must be able to book the room using the on-line reservations site.
- Hotel Access:
Rooms: The ADA requires accessible hotel rooms to be dispersed among the various classes of rooms available at the hotel. Factors to be considered in dispersing rooms include room size, price, available amenities, and number of beds. The Department of Justice (DOJ) takes the position that the dispersal requirements are essential to ensure that the services and facilities of a hotel are provided to indi-viduals with disabilities in the most integrated setting appropriate to their needs.
Physical Barriers: Although issues of physical barriers have been litigated for years, during this crisis, there has been an increase in litigation based on allegations of and denial of access to guests with disabilities. Hotel management should focus on its accessible parking spaces and valet parking policies. It should review access to the check-in area, the concierge desk, the lobby restrooms, the business center or area for computer use, the pool area (pool lift), and all other common areas that guests use throughout their visit. Management should also revisit its ADA policies and employee training.
Service Animals: Remind staff that guests accompanied by service animals must be permitted to have them on the premises. It does not matter if the hotel has a no pet policy.
Hotel management needs to also attend to COVID-19 related employment issues as they bring employees back to work.
- Fair Labor Standards Act (FLSA) and COVID-19: For most employers, FLSA requirements can be a challenge. Although there are nu-merous areas to consider, often wage and hour issues deal with the classification of exempt vs. non-exempt employees and how to properly pay them. With the COVID-19 disruption to the workplace, the FLSA has to be factored into the operations.
- Furloughs and closures: In the wake of furloughs and closures, it is not surprising that returning hotel staff are now expected to do additional tasks that are not a common part of the employees’ duties. The need to have employees play different roles in the early stages of reopening requires heightened attention be given to how the hotel is paying employees (overtime pay, hourly rates, and sala-ries), and how the employees are classified. Additionally, hotel management has to address whether to pay employees or not pay them for the time spent during COVID-19 related screening protocols. It is critical to remain mindful that plaintiffs’ attorneys will be vigilant in finding circumstances to argue there has been a violation of wage and hour laws. As such, in addition to the FLSA, employers need to consider the applicable state wage and hour laws. Management that gives time to evaluating and planning for potential wage and hour issues that may occur as employees come back to work, will likely be in a better position to address the challenges that COVID-19 has brought and will continue to bring to the work-place.
- ADA Title I Employment: Although the new guidance suggests that face coverings are an essential part of the safety protocols in this ever developing landscape, hotel employers have to consider the reasonable accommodation interaction required by the ADA if an employee claims that he/she cannot wear a face covering due to a health condition or that returning to work is a concern for he/she due to pre-existing conditions.
Given the substantial impact to the industry, hotel management should give thought to its contracts and their terms.
- Force Majeure Clauses: For most contracts, the analysis of whether a party may be excused from performance of an obligation should begin with a review of the contract’s force majeure clause, if any. Generally speaking, a force majeure clause excuses a party from a contractual obligation in light of an unexpected event beyond its control in specified circumstances. Hotels should be mindful of legit-imate health and safety concerns associated with hosting large events at this time, but also have contractual language that makes it more difficult for parties to back out of their contractual obligations.
- Management Agreements: Hoteliers should review any management agreements for possible default provisions or for potential modifications due to COVID-19. Hotel owners may also want to address franchisor issues such as modifications to improvement plan deadlines, and other related issues.
Because of the disruption that COVID-19 has caused to their business, hotel owners may want to consider the possibility of insurance coverage to mitigate the economic impact.
- Management: Management should review property damages coverage in their insurance policies and also look to your business interruption coverage. We suggest hotel owners and capital providers carefully review their insurance policies and coordinate with their consultants, lawyers and brokers to determine whether coverage is possible.
HEALTH AND SAFETY COMPLIANCE:
- New Guidance: Currently, Employers have been bombarded with new workplace guidelines due to COVID-19, but as a refresher employers are legally required to provide safe and healthy workplaces for employees and vendors/contractors on site. (See OSHA General Duty Clause. Also see EEOC Guidance and state/federal mandates.) To further assist hotel management and owners, the American Ho-tel and Lodging Association (AHLA) has developed enhanced cleaning guidelines and workplace protocols to meet the new health and safety challenges and expectations presented by COVID-19. Employers should train all on these new safety and sanitation protocols and how staff should interact with guests.
By implementing these measures, Hoteliers can take proactive compliance steps and adopt best practices that will go a long way in defending against additional litigation in the future. The impact of COVID-19 will eventually pass and there will be a return to some level of normalcy. Unfortunately, whether the “new normal” or the “old way,” lawsuits will continue to be a permanent feature in the hospi-tality industry, and the industry will have to adapt to the next wave of suits. Nevertheless, operators can however take steps to position themselves for a strong comeback. The old adage that an ounce of prevention is worth the pound of the cure is equally applicable to the reopening of hotels.
Carol C. Lumpkin is an Equity Partner at K&L Gates LLP. Lumpkin’s established practice in employment and commercial litigation encompasses representation of companies, ranging in size from small to international, in manufacturing, retail, health care, service, hotel, professional sports teams, and insurance industries. Her experience includes all facets of employment discrimination, workplace harassment litigation, workplace violence response strategies, and public accommodations including website litigation under the Americans with Disabilities Act (ADA). She handles non-competition, misappropriation of trade secrets, and corporate compliance matters. Lumpkin frequently addresses issues related to distribution agreements, breach of warranties, and commercial loans. Lumpkin’s diverse practice also includes client representation with regard to federal government investigations in multiple jurisdictions.
R. Shawn Hogue focuses his practice on commercial disputes and has extensive experience working in complex commercial litigation. Hogue has represented clients across numerous sectors of the economy with regulatory compliance, risk management, and employment practices. He has experience working with both large and small companies that specialize in technology, food, entertainment, retail, and transportation. Shawn also has experience litigating and defending all aspects of Americans with Disabilities Act litigation. Shawn has published numerous articles on the issue of web accessibility.