By Jeffrey S. Beck
As the weather changes, many employers turn their attention to facility maintenance. If you’re one of those employers, you should consider the implications of the Americans with Disabilities Act’s (ADA) building design standards for any significant projects you undertake, whether it’s a new coat of paint, remodeling, or thorough winterizing. Recently, the U.S. Department of Justice adopted revised “Standards for Accessible Design” (the “2010 standards”) as well as modifications to the ADA’s general nondiscrimination requirements. Much of the discussion of the recent amendments to the ADA has focused on the changes to its general nondiscrimination requirements. However, you should also be aware of the 2010 standards to avoid liability.
What’s the Big Deal?
The 2010 standards replace the 1991 standards, which were implemented with the original ADA. While the new general nondiscrimination requirements took effect on March 15, 2011, the deadline for complying with the 2010 standards is March 15, 2012. In the interim, commercial facilities and employers subject to the accessible design standards can choose to comply with either the 1991 or 2010 standards for new construction or alterations.
The new regulations provide a safe harbor for existing facilities. Facilities built or altered to comply with the 1991 standards need not be updated to comply with the 2010 requirements. However, you should be aware that the 2010 standards may be used to determine a reasonable accommodation for a particular employee or applicant.
The 2010 standards apply to most employers in one of two ways. First, every commercial facility (including office buildings) or public accommodation (businesses that provide goods or services to the public) is subject to the new standards. Additionally, private employers with 15 or more employees must follow the 2010 standards for new construction, unless greater accessibility is provided, and for renovations, unless it’s technically infeasible. Moreover, the ADA requires that you provide reasonable accommodation to employees with disabilities, and the 2010 standards can be instructive.
Noncompliance with the regulations and construction standards of the ADA can lead to a lawsuit and liability. Any employee or applicant can sue your company on the basis that he has been denied access or a reasonable accommodation because of an architectural barrier. If you are found to have denied access or a reasonable accommodation to an employee or applicant because of an architectural barrier, you can be liable for monetary damages and the employee’s attorneys’ fees in addition to your own defense costs. Clearly, the cost of accommodating an employee or applicant is much cheaper than the alternative.
Be Aware of Pitfalls
So what are some potential pitfalls you should look out for? First, you must ensure an accessible route for employees and applicants. Avoid creating new barriers that may occur as your business grows or changes. There are many ways you can create barriers if you aren’t careful. It’s a good idea to periodically conduct an inspection or walk through the facility to spot and remove any barriers.
Something as simple as rearranging furniture so that it intrudes on an accessible route can create a barrier that’s a violation of the ADA. For instance, a pedestal table adorned with fresh-cut flowers in the lobby may intrude into an accessible route and become a potential barrier to a person with a visual impairment. The barrier can be fixed by removing the table or possibly by placing objects on the floor around the table to enhance detection by visitors.
Another potential trap to avoid is an alteration that doesn’t comply with the standards. A facility that was constructed or modified to meet the 1991 standards must be updated to meet the 2010 standards if it undergoes an alteration. According to the ADA, “alterations” include remodeling, renovations, rearrangements in structural parts, and changes to or rearrangement of walls and full-height partitions. Thankfully, an employer that has a “commercial facility” (e.g., an office building) need not update the entire facility, only the area that is “altered.”
One change in the 2010 standards is the lowering of the required mounting height for light switches from 54 to 48 inches. Now, a routine restroom remodeling can lead to legal liability if the switches aren’t lowered to 48 inches.
Another potential pitfall relates to parking lots. Again, you will have to comply with the 2010 standards if you make an alteration to an existing parking lot. Restriping a parking lot is considered an alteration. Unlike the 1991 standards, the 2010 standards require that one in every six accessible parking spaces be van-accessible (the 1991 standards required one in every eight).
Because restriping a parking lot is considered an “alteration,” the 2010 standards would apply. Of course, even if the parking lot isn’t being restriped or otherwise altered, relocating or providing additional accessible parking may be a reasonable accommodation you would be required to make.
Finally, commercial facilities and employers have always been required to remove barriers if that accommodation could be easily accomplished without much difficulty or expense. Whether a facility is required to remove barriers will depend on factors like cost, financial resources, and the type of operation it is. Examples of ways to easily remove barriers include raising or lowering grab bars, repairing uneven pavement, installing “accessible” signs, and widening entrance doors.
In many cases, there is overlap between the ADA’s accessibility standards and its general nondiscrimination requirements. You need to be aware of both to reduce the risk of liability.
Jeffrey S. Beck is an associate with Baker & Daniels in the firm’s Indianapolis, Indiana, office. His practice is focused on defending employment litigation in both federal and state courts as well as representing clients before the EEOC and other state and local agencies. He also writes for the Indiana Employment Law Letter. He can be contacted at firstname.lastname@example.org.