By Leslie Callaway, CRCM, CAFP
Q/ My bank purchased a failed bank and its assets from the FDIC at the end of April. It is not converting systems until later this year. If one of the bank’s customers deposits a legacy bank’s check, is it an “on us” item for purposes of holding or not holding deposited funds?
A/ Under Regulation CC (Expedited Funds Availability Act), the bank has a year following the consummation of the merger before it must consider the failed bank’s checks as “on us” checks. This is addressed in several sections of the regulation and its commentary.
First, see §229.40, which states that, for Regulation CC purposes, “two or more banks that have engaged in a merger transaction may be considered to be separate banks for a period of one year following the consummation of the merger transaction.”
Next, see Comment 2 to §229.2(t) which defines merger transaction and states that “Regulation CC adopts a one-year transition period for banks that are party to a merger transaction during which the merged banks will continue to be treated as separate entities.”
Finally, see §229.19 (g): “For purposes of this subpart, except for the purposes of the new accounts exception of §229.13(a), and when funds are considered deposited under §229.19(a), two or more banks that have engaged in a merger transaction may be considered to be separate banks for a period of one year following the consummation of the merger transaction.” (Answer provided June 2024.)
Q/ Is a bank required to allow customers with disabilities to use its restrooms even if the restrooms are in non-public areas of the bank? My bank’s security officer believes that the Americans with Disabilities Act requires that the bank give them access, but the nonpublic areas may contain security equipment or allow exposure of confidential information, and allowing public access could place the bank, its employees and customers at risk.
A/ Probably not. Public companies need not provide services to people with disabilities that they do not provide to people who do not have disabilities. Thus, absent a local or state requirement, banks are not required to make restrooms available to the public — for people with disabilities or people without disabilities.
However, if a bank makes restrooms available to the public, they must be accessible, unless it is a pre-ADA facility and it is not “readily achievable,” to make it accessible (that is, easily accomplishable and able to be carried out without much difficulty or expense) or qualifies for another exception such as the historic preservation exception.
If the bank offers a public restroom and it is not accessible, which seems unlikely given the years since ADA was adopted, and the employee bathroom is accessible, allowing customers with disabilities to use an accessible employee restroom might be required under §36.302 of the ADA. That section requires public accommodations to make “reasonable modifications” to policies and practices in order to give people with disabilities access to “goods, services, facilities, privileges, advantages, or accommodations.”
However, to your point about security concerns, there is an exception for any accommodation that may cause the bank an undue burden. Undue burden includes consideration of “legitimate safety requirements that are necessary for safe operation.” (See §36.104.) For example, if the employee restroom is in an area with restricted access due to safety regulations, the requirement to make an accommodation may not apply. However, keep in mind that the bar for proving undue burden is very high.
The bank should also check state and local disability access requirements, which may impose additional requirements on businesses regarding the use of restrooms by customers with disabilities. (Answer provided June 2024.)
Answers are provided by Leslie Callaway, CRCM, CAFP, senior director, compliance outreach and development at ABA. Answers do not provide, nor are they substitutes for, professional legal services.
