In latest the Weekly Wright Report:
Food Trucks, Keep On Truckin
Maryland’s highest state court, the Maryland Court of Appeals, has decided that a Baltimore City ordinance banning food trucks from operating within 300 feet of brick and mortar competitors does not violate the Constitution of Maryland, or specifically, Article 24 of the Maryland Declaration of Rights.
The case which presented this issue, Pizza Di Joey, LLC and Madame BBQ, LLC v. Mayor and City Council of Baltimore City, was decided officially on August 17, 2020. The specific ordinance challenged Baltimore City Code, Art. 15, Subtitle 17-33 governing mobile vendors near retail stores, and states – “A mobile vendor may not park a vendor truck within 300 feet of any retail business establishment that is primarily engaged in selling the same type of food product, other merchandise, or service that is offered by that mobile vendor.” In essence, a mobile vendor cannot compete within 300 feet of a brick and mortar business that is primarily engaged in selling the same goods or services.
In its opinion, the Court of Appeals held that the ordinance was “rationally related” to the city’s legitimate interest in ensuring the economic vibrancy of its commercial districts and their restaurants. When the presence of food trucks began to rise in the latter half of the 2010’s, Baltimore City identified what economists refer to as a “free rider” problem. Individuals are drawn to economically vibrant areas due to the success of the businesses operating in those areas, the City argued. According to the City’s stated intent behind the ordinance, allowing outside vendors to “free ride” on the success of the brick and mortar businesses would detract from the success of the brick and mortar businesses, and may threaten the economic vibrancy of those areas. Baltimore City argued that it has a legitimate interest in the preservation of the viability of these areas, and this ordinance is rationally related to serving that interest. Without offering an endorsement of this policy, the Court of Appeals held that this ordinance did not violate the Constitution of Maryland.
As a former café owner in Baltimore City, I can relate. I understand the tremendous pressure on small business owners to pay suppliers, employees, and lease payments. In Baltimore City, lease payments in competitive areas can be staggering. The introduction of business competition can create tremendous financial difficulties for a small business. When a competing coffee shop moves onto the same block as an existing coffee shop, the market dictates the business landscape (which may include the possibility that there is enough demand for both businesses to thrive). On the other hand, introducing competition that doesn’t have the same financial commitments to those areas (such as monthly lease payments or taxes that they are paying to Baltimore City) could severely hamper businesses, and drive those businesses out of the City or into insolvency. While this does, unfortunately, raise barriers to entry for an already competitive foodservice market in Baltimore, the Baltimore City Council has deemed it necessary, and the Court of Appeals has determined that the City Council has not run afoul of the Constitution of Maryland in doing so.
Telework During Pandemic Does Not Set Precedent
The latest guidance issued by the Equal Employment Opportunity Commission (EEOC) on Tuesday, September 8, 2020 addressed whether telework was here to stay as a workplace accommodation. Simply put, the EEOC said that employers that provided telework during the COVID-19 pandemic are not automatically required to give disabled workers that same accommodation once the virus becomes less of a threat.
The Americans with Disabilities Act (ADA) mandates that employers provide workers “reasonable accommodations” to allow them to perform their job duties, and while telework sometimes fits meets that interpretation, the EEOC has made clear that a temporary shift online amid this extraordinary health crisis does not force a company to accept all remote work requests down the road.
Here is the exact excerpt:
Question: Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (9/8/20; adapted from 3/27/20 Webinar Question 21)
Answer: No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request—after the workplace reopens—to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.
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