A matter of accessibility
|Businesses and public facilities have until March to become compliant with new Americans with Disabilities Act regulations.|
Come March, hotels, shopping centers, hospitals, banks and ATM machines, libraries, sporting arenas, museums, prisons, movie theaters, doctors' offices, government facilities, fitness facilities and even golf courses will have to follow new rules for making themselves more accessible to people who are handicapped.
The new regulations—the first major revisions to the Americans with Disabilities Act in two decades—require compliance from an estimated 80,000 state and local governmental facilities and 7 million public places across the nation. The rules were revised in 2010 and enacted in spring 2011, with compliance required by March 2012.
The widespread changes are designed to enable handicapped people to more fully integrate into all aspects of life, whether it's going to the doctor, a sporting event or an amusement park. For example, there will be an increase in parking spaces for the handicapped. One in six spaces must be van-accessible, compared to one in eight under the previous guideline.
There are fewer exceptions in defining which building entrances must be accessible. Facilities must accommodate mobility devices other than wheelchairs. And all shelves, counters, fire alarms and other reachable objects must not be more than 48 inches high.
Recreational venues such as baseball and football stadiums, basketball arenas, golf courses, fishing piers, playgrounds, marinas, bowling alleys, gyms, shooting ranges, exercise clubs and spas now have specific rules to follow. Even public swimming pools must have two means of entry for the handicapped, whether by wheelchair lift or a sloped entry.
The amended regulations also contain expanded provisions on nondiscrimination policies, including the use of service animals (trained miniature horses are now an alternative to dogs, subject to certain limitations); the use of wheelchairs and other power-driven mobility devices; selling tickets for wheelchair-accessible seating at sports and performance venues; reserving and guaranteeing accessible rooms at hotels; and providing interpreter services through video conferencing.
“The new rules usher in a new day for the more than 50 million individuals with disabilities in this country,” says Thomas E. Perez, assistant attorney general for civil rights with the U.S. Department of Justice. “The rules expand accessibility in a number of areas and, for the first time, provide detailed guidance on how to make recreation facilities, including parks and swimming pools, accessible.”
No grandfather clause
Many business owners mistakenly believe there is a grandfather clause exempting existing buildings from having to comply with the new guidelines.
But that's not entirely true. New construction is required to comply with the new guidelines immediately, but existing facilities—the vast majority of properties affected by the rules—are required to comply to the extent it is “readily achievable.” That's defined in the law as “easily accomplishable and able to be carried out without much difficulty or expense.”
What exactly that means must be evaluated on a case-by-case basis, reviewing everything from the physical design of the building to the company's bottom line to determine if modifications are feasible.
There is, however, a “safe harbor” clause for buildings that were built or modified to meet the earlier ADA guidelines. Such entities will not be required to be brought into compliance with the new standards until those areas are subject to a planned alteration.
Susan Meyers, managing attorney of the access group at The Advocacy Center, which protects the rights of persons with mental or physical disabilities, says establishments open to the public are obliged to make their services accessible to the disabled, whether by altering existing facilities or providing an alternate accessible location, regardless of when that facility was built.
“There is a perception that if you have a building that was built before the 1991 standards took effect, you don't have any obligation to make that facility accessible,” she says. “That's incorrect to some extent. There is an obligation to remove barriers in inaccessible facilities, even if those facilities were built prior to the enactment of the ADA. There's an overarching requirement for services and programs and benefits and everything that a business does to be accessible.”
Meyers encourages businesses to consider all the options in making their facilities more accessible. If a building can't accommodate a ramp, for example, its owner might consider a porch lift instead.
Louisiana State Fire Marshal H. “Butch” Browning Jr., whose office enforces the regulations statewide, says his staff reviews about 15,000 buildings annually to ensure compliance with ADA standards.
The fire marshal's office has provided eight seminars across the state to educate architecture and design firms on the new requirements. It also has a section on its website detailing the new standards, with links and contact information.
“We're looking forward to a seamless transition to bring in these new recreational facilities to improve [people's] quality of life,” Browning says. “This is really a good thing. It's about safety, No. 1. If there's an emergency, everyone needs to be able to evacuate quickly. But secondly, every day, it's about quality of life. I really get the importance of this."
Click here for highlights of the changes to the Americans with Disabilities Act.
Many businesses are hiring an attorney or a consultant to conduct an ADA audit of disability-related policies and practices to determine whether they are in compliance with the law.
Lawyers say the best approach for property owners is to prioritize, using the ADA guidelines to determine what areas to update first. The focus should be on what visitors first encounter when arriving at the property, including curbs, parking spaces, ramps or lifts, and entrances. After that, the focus should be on making services accessible.
Scott Huffstetler, a partner at Kean Miller who specializes in labor and employment law and discrimination defense, cautions that the new regulations should not be taken lightly. Companies should expect more charges of disability discrimination, and Equal Employment Opportunity Commission investigators likely will be more aggressive and thorough in their investigations.
“Because the standards for finding disability discrimination are now easier to satisfy,” Huffstetler says, “businesses can also expect more adverse determinations from the EEOC on disability discrimination claims and greater damage awards, coupled with more onerous compliance and reporting requirements as a result of an adverse determination.”
Human resources professionals should make sure they are familiar with the new requirements and interpretive regulations.
“Education, to me, is the best practice for determining whether businesses are in compliance with the new ADA requirements,” Huffstetler says. “There are a number of seminars offered by different organizations and agencies, and businesses would be wise to send their executives and HR professionals to these opportunities.”
Once those high-level managers are properly educated, they can assume responsibility for training other managers who engage in day-to-day operations with employees—the ones most likely to face allegations of ADA violations. Huffstetler also emphasizes the importance of training workers when to seek help on particular issues that may arise. His final piece of advice: Do the paperwork.
“Documentation procedures should be in place that will evidence interactions with employees claiming to be disabled and efforts to reasonably accommodate them,” Huffstetler says. “You should train and encourage your employees to document smart.”
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