Most U.S. employers have implemented some form of employee mask mandate in response to the COVID-19 pandemic. The likely issuance of a federal Occupational Safety and Health Administration emergency COVID-19 safety standard in the next few weeks will cause the remaining employers to institute and enforce such requirements. A recent settlement in a California case brought against Nike’s retail operations raises the potential for employers to have to provide alternative mask designs to employees who deal with members of the public.

In the lawsuit, a deaf customer filed a class action claim against Nike under Title III of the Americans with Disabilities Act and California disability rights laws. The suit alleges that some deaf and hard of hearing customers are unable to effectively communicate with store staff wearing opaque face masks due to their inability to lip read. In the settlement, Nike agrees to provide its staff with transparent face masks to allow effective communications.

Title III of the ADA requires places that are generally open to the public to make reasonable accommodations in order to allow disabled people access to their goods and services. In our experience, few retailers, hospitality industry companies, and other employers that serve the public have considered how their COVID-19 infection control procedures may affect customers with disabilities. There is an active plaintiffs’ bar that seizes on opportunities to file class action claims when new circumstances such as this arise. While Title III does not provide for monetary damages claims, successful plaintiffs can obtain injunctive relief and payment of their attorneys’ fees.

Employers that have employees serving the public should review their mask requirements and other COVID-19 prevention measures to make sure they can still effectively provide services to deaf and other disabled people.