According to the Centers for Disease Control and Prevention, approximately 61 million Americans live with a disability. This means that one in four American adults may face hurdles going about their day-to-day lives, including tasks such as driving a car, operating a crosswalk, or entering a building. Fittingly, the United States protects this community from discrimination through The Americans with Disabilities Act (ADA) of 1990. This legislation bars discrimination by public and private entities, such as restaurants, shopping centers, hotels, medical clinics, and parks. More specifically, Title III of the ADA requires that these entities provide accommodations to people with disabilities, including providing accessible facilities.
While most people support this legislation, staying in compliance is sometimes easier said than done. Navigating the maze of complex and ever-evolving federal regulations can be confusing and overwhelming. MOORING understands that sometimes good intentions and Google do not cut it. As such, our team would like to share a brief overview to help you along the way to compliance. Keep reading below to learn more about ADA regulations as they apply to your facility.
WHO IS PROTECTED UNDER THE ADA?
The U.S. Department of Health and Human Services lists the specifics as follows:
“An individual with a disability is a person who has a physical or mental impairment that substantially limits major life activities; has a record of such an impairment, or is regarded as having such an impairment. Major life activities mean functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Under the ADA, a qualified individual with a disability is an individual with a disability who meets the essential eligibility requirements for receipt of services or participation in programs or activities. Whether a particular condition constitutes a disability within the meaning of the ADA requires a case-by-case determination.
Physical or mental impairments include, but are not limited to: visual, speech, and hearing impairments; mental retardation, emotional illness, and specific learning disabilities; cerebral palsy; epilepsy; muscular dystrophy; multiple sclerosis; orthopedic conditions; cancer; heart disease; diabetes; and contagious and noncontagious diseases such as tuberculosis and HIV disease (whether symptomatic or asymptomatic).”
ARE THERE POTENTIAL LIABILITIES FOR OWNERS, LANDLORDS, AND TENANTS?
Non-compliance can affect all three groups, either individually or jointly. Perhaps most important to note, landlords cannot shift ADA liability to their tenants. Similarly, property managers might not have direct liability, as agents of the landlord their actions can have major consequences, too.
WHAT CONSIDERATIONS SHOULD BE MADE BEFORE PURCHASING A PROPERTY?
It is likely that a building may not be ADA compliant before it goes on the market, especially buildings constructed before 1990. To minimize liability, purchasers can:
- Stipulate that the sellers rectify any ADA violations as a condition of closing.
- Require that a specific portion of the purchase price be placed in escrow until compliance can be verified.
- Negotiate a lower purchase price so that you can implement the changes as part of other modifications you have planned.
The majority of potential violations are preventable. Implementing policies and procedures that ensure equal access to all can drastically minimize risk.
HOW DOES TITLE III APPLY TO COMMERCIAL PROPERTIES IN GENERAL?
Title III of the ADA applies to public accommodations, which includes retail, service, and other businesses, as well as commercial facilities including—but not limited to—office buildings, factories, and warehouses that are operated privately.
HOW DOES TITLE III AFFECT EXISTING FACILITIES?
According to the Department of Justice, existing facilities are required to remove architectural barriers that might impede “a person with disabilities from obtaining goods or services that are offered.” However, removal is only required if it is determined to be readily achievable. This means that the barrier can be removed “without much difficulty or expense.” Section 26.304 of the most recent version of the ADA Title III provides examples of steps that may be taken to remove barriers, including widening doors, adding curb cuts to sidewalks and entrances, adding raised markings on elevator control buttons, and installing flashing alarm lights. The Department of Justice also provides The Checklist for Readily Achievable Barrier Removal, which details the requirements found in the ADA Standards for Accessible Design.
HOW DOES TITLE III AFFECT NEW CONSTRUCTION OR REMODELS AND RENOVATIONS?
New construction, of course, offers the easiest way to ensure that all the latest updates to the Americans with Disabilities Act are implemented from the moment a project is designed through final implementation.
When modifying an existing property, the changes must allow for a path of travel to primary function areas, including lobbies in multi-tenant buildings, so that accessibility is accommodated to the maximum extent possible. Research is key to understanding the potential snowball effect of making ADA modifications, which can be costly, especially if you end up needing to add elevators and other pricey accessibility features.
Regardless of the type of modifications, you are about to undertake, hiring an ADA expert will save you time and headaches in the long run.