Keeping in mind that neither the industry nor our regulators (nor your customers) have ever experienced the current environment, we believe that asking COVID-19 screening questions to all customers who arrive at your open facilities could pose reputational risks to your bank, particularly because the Illinois governor’s Executive Order has designated financial institutions to be essential businesses during the pandemic crises. On the other hand, if a customer shows up exhibiting symptoms of COVID-19 (which have been identified by the Centers for Disease Control (CDC) as primarily being fever, cough or shortness of breath), we believe you would have a reasonable basis for asking these questions and limiting the customer’s access to your facility based on their answers — provided you also direct them to alternatives for conducting their banking transactions, such as online and telephone banking, or even your drive-through. We also believe it would be reasonable for you to screen customers who call the bank to schedule an in-person visit by first asking these questions, since you may not otherwise be able to determine whether they are symptomatic before scheduling their appointment.

Under the ADA, banks are considered places of public accommodation and may not discriminate “on the basis of disability in the full and equal enjoyment” of their services. The ADA’s definition of disability includes “contagious and noncontagious diseases.” However, the ADA does not require a public accommodation to serve individuals who “pose a direct threat to the health or safety of others.” The determination of whether a customer poses a direct threat must be based on “an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: [t]he 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 or the provision of auxiliary aids or services will mitigate the risk.”

Based on CDC information about how the coronavirus spreads (“mainly from person-to-person . . . [[b][/b]b]etween people who are in close contact with one another (within about 6 feet)”) and other risk factors (such as living in the same household with a person with a confirmed diagnosis of COVID-19 or traveling to countries with “widespread sustained transmission” or with “sustained community transmission” of the coronavirus), we believe that your bank would have a reasonable basis for asking screening questions of a customer exhibiting COVID-19 symptoms to determine whether the customer “poses a direct threat to the health and safety of others” and can permissibly be restricted from entering your bank’s lobbies or branches.

If you do believe that a customer poses a direct health threat, the ADA requires you to ascertain whether “reasonable modifications” will mitigate the risk, and in this case, we believe that providing such customers with alternatives to in-person banking would mitigate the risk. Additionally, we caution that the decision to ask a customer COVID-19 screening questions should not be based (in intent or outcome) on characteristics such as race or national origin.

The CDC has published guidance for businesses and employers, suggesting that they “identify where and how workers might be exposed to COVID-19 at work” and referring to the Occupational Safety and Health Administration (OSHA) guidance on how to protect workers from potential exposures. The OSHA guidance on preparing workplaces for COVID-19 suggests installing physical barriers (such as clear plastic sneeze guards) and drive-through windows as protection measures to isolate employees from work-related hazards. Consequently, you may wish to ensure that your employees are protected by barriers (such as teller windows) when interacting with customers in-person.

Additionally, the IDFPR recently confirmed a bank may close its lobbies to foot traffic without obtaining an official proclamation — provided the branches remain open in some manner (for example, by providing drive-through teller services). In such cases, the IDFPR has asked to be notified of any such changes, and we also recommend notifying your federal regulator (in this case, the Federal Reserve) of any branch-access changes. However, if you intend to provide lobby access to customers by appointment only at a branch where you do not offer drive-through teller services,  you will need to obtain an official proclamation from the IDFPR, as required under the Banking Emergencies Act.

For resources related to our guidance, please see:

• CDC, Symptoms (“Reported illnesses have ranged from mild symptoms to severe illness and death for confirmed coronavirus disease 2019 (COVID-19) cases. The following symptoms may appear 2-14 days after exposure. Fever, Cough, Shortness of breath.”)

• Illinois Executive Order 2020-10, Sec. 12(f) (March 20, 2020) (“For the purposes of this Executive Order, Essential Businesses and Operations means . . . the following: . . . Financial institutions. Banks, currency exchanges, consumer lenders, including but not limited, to payday lenders, pawnbrokers, consumer installment lenders and sales finance lenders, credit unions, appraisers, title companies, financial markets, trading and futures exchanges, affiliates of financial institutions, entities that issue bonds, related financial institutions, and institutions selling financial products;”)

• ADA, 42 USC 12182(a) (“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 owns, leases (or leases to), or operates a place of public accommodation.”)

• ADA Rules, 28 CFR 36.104 (“Place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories . . . (6) A . . . bank . . .”)

• ADA Rules, 28 CFR 36.105(a)(1) (“Disability means, with respect to an individual: (i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) A record of such an impairment; or (iii) Being regarded as having such an impairment as described in paragraph (f) of this section.”)

• ADA Rules, 28 CFR 36.105(b)(2) (“Physical or mental impairment includes, but is not limited to, contagious and noncontagious diseases and conditions such as the following: Orthopedic, visual, speech and hearing impairments, and cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder, Human Immunodeficiency Virus infection (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.”)

• ADA Rules, 28 CFR 36.105(f) (“The following principles apply under the ‘regarded as’ prong of the definition of ‘disability’ (paragraph (a)(1)(iii) of this section): (1) Except as set forth in paragraph (f)(2) of this section, an individual is ‘regarded as having such an impairment’ if the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit, a major life activity, even if the public accommodation asserts, or may or does ultimately establish, a defense to the action prohibited by the ADA. (2) An individual is not ‘regarded as having such an impairment’ if the public accommodation demonstrates that the impairment is, objectively, both ‘transitory’ and ‘minor.’ A public accommodation may not defeat ‘regarded as’ coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the public accommodation must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment), objectively, both ‘transitory’ and ‘minor.’ For purposes of this section, ‘transitory’ is defined as lasting or expected to last six months or less.”)

• ADA Rules, 28 CFR 36.208 (“Direct threat. (a) This part 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) 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 or the provision of auxiliary aids or services will mitigate the risk.”)

• CDC, How Coronavirus Spreads (“The virus is thought to spread mainly from person-to-person. Between people who are in close contact with one another (within about 6 feet). Through respiratory droplets produced when an infected person coughs or sneezes. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. . . . People are thought to be most contagious when they are most symptomatic (the sickest). Some spread might be possible before people show symptoms; there have been reports of this occurring with this new coronavirus, but this is not thought to be the main way the virus spreads.”)

• CDC, Table 1. Risk Categories for Exposures Associated with Travel or Identified during Contact Investigations of Laboratory-confirmed Cases (Updated March 22)

• CDC, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (Updated March 21, 2020) (“To prevent stigma and discrimination in the workplace, use only the guidance described below to determine risk of COVID-19 infection. Do not make determinations of risk based on race or country of origin and be sure to maintain confidentiality of people with confirmed coronavirus infection. There is much more to learn about the transmissibility, severity, and other features of COVID-19 and investigations are ongoing.”)

• CDC, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (Updated March 21, 2020) (“Consider establishing policies and practices for social distancing. Social distancing should be implemented if recommended by state and local health authorities. Social distancing means avoiding large gatherings and maintaining distance (approximately 6 feet or 2 meters) from others when possible (e.g., breakrooms and cafeterias). Strategies that business could use include: [1] Implementing flexible worksites (e.g., telework) [2] Implementing flexible work hours (e.g., staggered shifts) [3] Increasing physical space between employees at the worksite [4] Increasing physical space between employees and customers (e.g., drive through, partitions) [5] Implementing flexible meeting and travel options (e.g., postpone non-essential meetings or events) [6] Downsizing operations [7] Delivering services remotely (e.g. phone, video, or web) [8] Delivering products through curbside pick-up or delivery”)

• CDC, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (Updated March 21, 2020) (“Identify where and how workers might be exposed to COVID-19 at work: [1] See OSHA COVID-19 webpage for more information on how to protect workers from potential exposures and guidance for employers, including steps to take for jobs according to exposure risk. [2] Be aware that some employees may be at higher risk for serious illness, such as older adults and those with chronic medical conditions. Consider minimizing face-to-face contact between these employees or assign work tasks that allow them to maintain a distance of six feet from other workers, customers and visitors, or to telework if possible.”)

• OSHA, Guidance on Preparing Workplaces for COVID-19 pages 12-13 (“During a COVID-19 outbreak, when it may not be possible to eliminate the hazard, the most effective protection measures are (listed from most effective to least effective): engineering controls, administrative controls, safe work practices (a type of administrative control), and PPE. . . . Engineering controls involve isolating employees from work-related hazards. In workplaces where they are appropriate, these types of controls reduce exposure to hazards without relying on worker behavior and can be the most cost-effective solution to implement. Engineering controls for SARS-CoV-2 include: . . . Installing physical barriers, such as clear plastic sneeze guards. Installing a drive-through window for customer service.”)

• Illinois Bankers Association, Critical Coronavirus Update (March 16, 2020)

• IDFPR, Email from the Division of Banking (March 16, 2020) (“We are aware that banks have questions regarding conducting business during this difficult time. Specifically, we have received a number of questions regarding closing lobbies, closing branches, etc. If a bank intends to close its lobby and instead conduct business through its drive through during its normal business hours, no proclamation is required. If, however, a bank intends to close a branch or change its business hours, a proclamation is required. In any of the above cases, the bank should notify the Department of its planned changes. As always, when the bank returns to normal operations, the bank should notify the Department. If there are any questions on this or any other issues, please contact Chasse Rehwinkel at 312-793-0471 or Kerri Doll at 217-558-4938. Any notifications of changes in operation can be sent to [email protected].”)

• Federal Reserve Supervision and Regulation Letter SR 20-40 — Supervisory Practices Regarding Financial Institutions Affected by Coronavirus (March 13, 2020) (“Financial institutions are encouraged to review SR letter 13-6 / CA letter 13-3, ‘Supervisory Practices Regarding Banking Organizations and their Borrowers and Other Customers Affected by a Major Disaster or Emergency.’  This letter discusses the supervisory practices that the Federal Reserve System will employ when financial institutions and their customers are affected by Coronavirus. SR letter 13-6 / CA letter 13-3 also provides examples of efforts that financial institutions may want to consider in working with affected customers.”)

• Federal Reserve Supervision and Regulation Letter SR 13-6 — Supervisory Practices Regarding Banking Organizations and their Borrowers and Other Customers Affected by a Major Disaster or Emergency (March 29, 2013) (“A major disaster or emergency may lead an affected state member bank or U.S. branch of a foreign banking organization to temporarily curtail or cease the operations of a branch or temporarily move some or all of a branch’s operations to alternate locations. In such instances, banking organizations should advise the responsible Federal Reserve Bank of these temporary changes.”)

• Banking Emergencies Act, 205 ILCS 610/2(a) (“Whenever the Commissioner is notified by any officer of a bank or by any other means becomes aware that an emergency exists, or is impending, he may, by proclamation, authorize all banks in the State of Illinois to close or alter the hours at any or all of their offices, or if only a bank or banks, or offices thereof, in a particular area or areas of the State of Illinois are affected by the emergency or impending emergency, the Commissioner may authorize only the affected bank, banks, or offices thereof, to close. The office or offices so closed may remain closed until the Commissioner declares, by further proclamation, that the emergency or impending emergency has ended. . . .”)

• Banking Emergencies Act, 205 ILCS 610/1(1) (“‘Commissioner’ means the officer of this State designated by law to exercise supervision over banks and trust companies, and any other person lawfully exercising such powers, except that beginning on the effective date of this amendatory Act of the 96th General Assembly, all references in this Act to the Commissioner of Banks and Real Estate are deemed, in appropriate contexts, to be references to the Secretary of Financial and Professional Regulation.”)