Ask a Lawyer is a recurring column where attorney Jason Pill answers questions from people who work in the climbing industry. Got a legal question that you’d like him to tackle about your gym, your employees, or anything else in the wide world of climbing? Submit your legal question here.
Every year, climbing gyms battle the flu. They strategically position free sanitizer stations around the facility and keep soap dispensers fully stocked. No matter the steps taken, however, we still hear customers coughing, sniffing, and sneezing. How can a climbing gym respond to sick customers they would prefer to not be in the building?
With the spread of coronavirus (COVID-19), climbing gyms may find themselves needing to communicate with patrons that are exhibiting obvious symptoms of illness. Before talking with a customer who “looks sick,” it’s vital to understand the laws around the issue. Locally, there may be statutes that limit your ability to exclude patrons. Nationally, there are two major issues to keep in mind, and CBJ contributor Jason Pill explores these below.
QUESTION: “Can my gym kick out a climber who looks sick?”
PILL: This situation is very nuanced. First, Title VII of the Civil Rights Act (a federal statute) prohibits discrimination in places of public accommodation on the basis of race, color, religion, and national origin. This includes virtually every climbing gym. Second, the Americans with Disabilities Act (the “ADA”) guarantees the right of public accommodation to disabled individuals, and thus prohibits discrimination by private businesses based on disability (e.g., a business cannot deny service to blind or deaf customers).
A Closer Look at the ADA
Refusing services to customers “who look sick” may run afoul of the ADA, but the inquiry doesn’t end there. As a starting point, having coronavirus, for example, may not qualify as a disability under the ADA because the ADA does not cover minor or temporary conditions (such as the cold or flu). The ADA does, though, cover severe short-term illnesses. It’s not a bright-line rule, so it depends how the illness impacts the individual and whether it actually is coronavirus or the flu. Adding further complication, and unlike Title VII, the ADA is broader than some of its federal counterparts and protects individuals who have disabilities or are perceived as having a disability.
Assuming an individual with the coronavirus is covered by the ADA and the ADA protections are triggered, the ADA still allows businesses to take safety factors into consideration when providing (or not providing) services. For that reason, there would be a strong public safety argument for denying service if an individual who is sick poses a direct threat to the health and safety of others. Of course, any safety standard relied upon by a gym would have to be based on objective criteria rather than stereotypes or generalities.
Communication vs. Exclusion
At a minimum, I think most gyms are safe putting up signs which encourage people who are currently sick or exhibiting flu-like symptoms to not visit, for the safety of others. However, if gyms are going to actively refuse service, there are more nuanced considerations. Protecting the safety and health of other customers would likely insulate most gyms from liability in this situation, but I would be cautious about how a gym rolled out or implemented this program and how it determined when someone “looks sick.”
As a middle ground, I also think most gyms are safe talking to people exhibiting noticeable symptoms, and encouraging them to come back when they’re feeling better. This is a little softer than actively kicking them out, and may encourage a dialogue which could help ensure that the symptoms aren’t related to a different disability that was not contagious. This is where messaging may help, and I would want to have a manager involved.
Note: This recurring column offers general advice and is not intended to be used as direct legal counsel. Gym owners should consult a lawyer for their facility’s specific legal matters. Pill can be contacted directly here.
Jason Pill is a longtime climber and an attorney with Phelps Dunbar, LLP in Tampa, Florida. He practices in the area of labor and employment and assists clients in handling unique issues that arise at the intersection of law and technology. Additionally, Jason managed a climbing gym before embarking on a legal career, and he currently serves as the Chairperson of USA Climbing’s Risk Management Committee.