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ADA title III compliance: your liability and how to reduce it.

Possibly the greatest and most commonly held misconception about the Americans with Disabilities Act (ADA) is that the public was not required to comply with federal disabled access requirements until January 26, 1992. The fact of the matter is that as of that date, the ADA became enforceable and owners and managers of properties classified as public accommodations must take steps toward compliance or face fines and/or suits for failures to comply.

A "public accommodation" as defined in the law encompasses many types of commercial properties, including all retail establishments, lodging, restaurants, recreational facilities, places of education, auditoriums and convention centers, and service establishments ranging from banks through dry cleaners, health care providers, and probably real estate sales and leasing offices.

Other commercial facilities, including private warehouses, manufacturing plants, and some offices, are not required to make alterations to comply with Title III except in the course of new construction or major renovation.

What is "readily achievable"?

The regulations issued by the Department of Justice (DOJ) require public accommodations to remove architectural barriers: "...where such removal is readily achievable, i.e., easily accomplished and able to be carried out without much difficulty or expense." (28 CFR, Part 36)

However, the ADA then states that "barrier removal is not readily achievable if it would result in a significant loss of profit, or significant loss of efficiency of operation..."

The question then becomes, what does the term "significant" mean? Section 36.301 (9) of the ADA lists the factors to be considered in determining whether barrier removal is readily achievable or places an "undue burden" on the building's ownership. Determinants include:

* The nature and cost of the action needed for compliance.

* The overall financial resources of the property; the number of people employed there; and the effect of the alterations on expenses and resources.

* The financial resources of the property's owner and its parent company.

* The type of operation of the property owner, including the composition and functions of its workforce.

Unfortunately, Justice Department regulations do not provide any numerical guidelines for determining whether an action is readily achievable or an undue burden. The Department has stated that the wide range of properties covered by the Act and the different economic situations of owners make it impossible to set specific standards.

However, to the extent possible, building owners, managers, and tenants must either remove existing barriers or provide auxiliary aids and services that will assist the disabled in overcoming barriers.

"Auxiliary aids" include such services as assistive listening headsets, decoders, taped text, braille materials, and staff assistance in performing tasks that cannot otherwise be accomplished by the disabled. Under the law, using auxiliary aids is not a replacement for barrier removal, but a supplemental activity to be used when compliance would not otherwise be viable.

Recommendations for compliance

The first step in determining what building modifications are readily achievable is a survey of the facility for non-compliance. Once all potential barriers have been identified, develop an implementation plan based on a budget you can afford. A plan, even if it is phased in over a span of time, will go a long way toward establishing a "good faith effort" toward compliance.

In developing this plan, give priority to correcting the barriers that contain the highest degree of liability first and then work down the list as your budget allows.

ADA regulations do not mandate a specific list of what must be corrected or in what order, but they do suggest areas that should be given priority. The DOJ states that first priority in barrier removal should be given to areas that limit public access to a building from the sidewalk or parking areas. Thus, providing entrance ramps to a building, widening exterior doors, installing handicapped parking spaces, and making sidewalk cuts might be among the first alterations made.

Next, regulations emphasize achieving accessibility to goods and services offered in a building, including widening aisles, lowering display racks, widening interior doors, and rearranging furniture. Regulations also advocate providing access to public restrooms by widening doors, installing raised toilet seats and grab bars, and clearing entry paths.

Of course, making these modifications does not end an owner or manager's obligations. Almost two dozen specific suggested alterations are listed in the ADA Accessibility Guidelines, and even more changes might be necessary for complete compliance.

It is also important to note that tenants in buildings classified as public accommodations must bring their leased premises into compliance. The ADA states that the prohibition against discrimination applies to "any person who owns, leases (or leases to), or operates a place of public accommodation;'

In a commercial setting, the ADA coverage is quite extensive and would include the sublessee, management companies, and any other entity that owns, leases, leases to, or operates a place of public accommodation, even if the operation is only for a short time.

It is not an owner or manager's responsibility to ensure that a tenant comply with the ADA. However, if a tenant is not complying and a suit is filed, the landlord can, and usually will, be brought under the blanket of the suit.

Allocating costs of compliance

Although the statutory language could be interpreted as placing responsibility on all concerned, the question now arises as to who is ultimately responsible for making alterations to existing facilities. The ADA final rule does not list specific allocations to specific parties but, rather, leaves allocation of responsibilities to the lease.

Unfortunately, most landlords and tenants did not contemplate the ADA when they negotiated their leases and thus did not provide for any allocation of those responsibilities. However, various lease clauses may place some of the responsibility on the tenant.

For example, many leases contain a "compliance clause;' a clause which allocates responsibility to a particular party for compliance with all relevant federal, state, and local requirements. A compliance clause that covers laws "hereafter in effect" should enable an owner to allocate costs to the tenant for ADA-required modifications.

The owner, manager, and leasing agent also could be liable for not disclosing pertinent information to a prospective tenant concerning costs to be incurred as a result of ADA compliance. Because many sites will have to phase in the barrier-removal improvements over a period of years, not informing a tenant of anticipated financial obligations may be construed as a non-disclosure and would, therefore, be actionable in a court of law.

Most leases also contain a clause requiring that all alterations comply with existing laws and governmental requirements. Such a clause places the responsibility for ensuring that the renovations meet ADA guidelines on the tenant.

The ADA also requires that entities making alterations, including tenants, must provide up to 20 percent in additional expenditures over and above the original improvement costs to make alterations to the path of travel servicing their leased area. In some cases, the alterations will be made in common areas of the building. However, an owner would not be required to make additional common area alterations unless the entire common area was being renovated or the building was a public accommodation.

Ensuring alterations comply

The technical guidelines for the design and construction of disabled accessibility features under the ADA, which are issued by the Architectural and Transportation Barriers Compliance Board in Washington, are comprehensive and specific. Correct widths for wheelchairs, grades and lengths for access ramps, and much more are detailed in this publication.

Since January 26, 1992, legal action can be taken against the owner, lessor, lessee, and management company for design deficiencies that restfit in discrimination against disabled individuals. In addition, an owner may be held liable for personal injuries to disabled people using improperly constructed alterations that do not meet ADA requirements.

To protect yourself from the negative consequences that errors and omissions in design and construction can create, construction and improvement contracts should expressly delegate responsibilities for compliance to the architect and contractor. This type of clause is especially important in states that do not have state codes for handicapped access, as local building offices in such states will not check plans for ADA compliance.

A final reminder

Although you are never exempt from the possibility of having a discrimination suit brought against you or your property, regardless of the level of compliance you may have reached, doing nothing is not the answer.

The Department of Justice states that: "A serious effort at self-assessment and consultation can diminish the threat of litigation and save resources by identifying the most efficient means of providing required access;'

In addition, even if it is not financially feasible to complete all the barrier removal requirements in your facility immediately, developing an implementation plan to achieve compliance is an essential step. The DOJ states: "Such a plan, if appropriately designed and diligently executed, could serve as evidence of a good faith effort to comply with the requirements..."

The policies and procedures that you establish now for complying with the ADA will make a substantial difference to you if a future problem arises.

Michael R Gibbens is president and principal consultant with Production Consulting and Construction (PCC), located in Westlake Village, California. Mr. Gibbens is a nationally known expert on disabled access compliance and provides interpretive and technical information for background in the defense of compliance violations.

Founded in 1986, PCC provides interpretation, design, and construction services for compliance with disabled accessibility requirements. The firm has published five design and compliance manuals, including the ADA Compliance Evaluation Survey

ADA and the Employee

While much of the real estate industry's focus has been on the barrier removal aspects of the ADA, many management firms also are affected by employment provisions of the Act (Title I). This portion of the ADA, which goes into effect on July 26, 1992 for companies with 25 or more employees, is intended to ensure that "persons with disabilities... not be excluded from job opportunities unless they are actually unable to the do the job."

While the ADA does not mandate the hiring of disabled individuals, it does prohibit employment discrimination against a qualified disabled applicant if that individual could perform the essential functions of the job with reasonable accommodations.

Under the Act, the definition of an essential job function is left to the individual employer. However, anything defined as essential should be supported by a job description and by the actions of other employees in the job.

Title I further requires employers to make reasonable accommodations which will allow an otherwise qualified disabled person to hold a position. Reasonable accommodation includes making existing facilities accessible and usable by individuals with disabilities and modifying equipment, work schedules, or policies to accommodate individuals with disabilities.

Thus, an applicant with a severe hearing loss might be reasonably accommodated for a receptionist position with the purchase of special equipment to increase sound volume from the telephone. The Act does not require modifications that pose an "undue hardship" on a company in terms of expense or an unreasonable allocation of resources.

Finally, it is important to note that the ADA is civil rights legislation and thus prohibits interviewers from questioning applicants about disabilities except as they relate directly to job requirements.

For a more complete discussion of Title I of the ADA and its implementation, see the July/August 1992 issue of the Journal

Lease Clauses for Compliance


* Require tenant to comply with ADA (at least non-structural elements).

* Require indemnity from tenant for tenant's non-compliance.

* Add a lease clause that allows landlord to pass through as operating expenses the cost incurred by landlord for ADA compliance.


* Request warranty from landlord that common areas comply.

* Request indemnity from costs incurred for compliance.

* Request that increased costs or delays in tenant construction because of common area non-compliance are landlord's responsibility.

Source: Commercial Real Estate Transactions

Who Is Defined as Disabled?

The scope of the ADA protects any individual with a "physical or mental impairment that substantially limits one or more major life activities:' as well as those with a "record of such an impairment" or those "regarded as having such an impairment:'

Under the provisions of the ADA, impairments may include physiological disorders, cosmetic disfigurements, and anatomical losses. Specific conditions might include multiple sclerosis, cancer, heart disease, blindness, deafness, infection with HIV, and alcoholism. Mental impairments encompass retardation, brain injuries. mental illness, and learning disabilities. The list of disabilities is not limited to those cited in the law.

An ADA Resource Guide

* Mainstream, Inc., Washington, D.C., (202) 898-1400. Publishes a number of reference guides that give information on incorporating disabled individuals into society.

* Architectural and Transportation Barriers Compliance Board, Washington, D.C., (202) 653-7834. Responsible for issuing the minimum guidelines and requirements for accessible design.

* Americans with Disabilities Act information line, (202) 514-0301. Legal questions about the Act should be addressed to the Justice Department at (202) 307-2222.

* Telecommunications Commission, Washington, D.C., provides information on telephone adapters for the hearing impaired, (202) 634-1816 or -4855.

* National Rehabilitation Information Center, Silver Spring, Md., (800) 346-3742.

* Information Center for the Disabled, New York City, (212) 679-0100.

* National Organization on Disability, Washington, D.C., (800) 248*ABLE or (202) 293-5960.

* Institute for Rehabilitation and Disability Management, Washington Business Group on Health, Washington, D.C., (202) 547-6644.

* Direct Link for the Disabled, Solvang, Calif., (805) 688-1603. Maintains listings of more than 10,000 organizations and community resource centers for all disabilities.

* Industry-Labor Council on Employment and Disability, (516) 747-6323. A non-profit organization of more than 140 corporations that provides information and technical assistance to employers seeking to integrate people with disabilities into workforces.

* "How to Comply with the Americans with Disabilities Act: A Detailed Guide," $155, (800) 323-3742. Includes key yardsticks that determine when compliance is an "undue hardship" to a business. Worksheets and checklists to document the effects on your organization are also provided.

* "Your Company and the Americans with Disabilities Act of 1990," published by UNUM Life Insurance, (207) 770-2934. Outlines the Act and features three pages of resources and technical assistance.

* "Making the ADA Work for You;' published by Michael Lotito of Jackson, Lewis, Schnitzler & Krupman, a law firm specializing in labor issues (525 Market Street, Suite 3400, San Francisco, CA 94105), $95. A comprehensive manual that tackles both the legal and attitudinal aspects of the Act.

* "Compliance Guide to the Americans with Disabilities Act," Small Business Legislative Council. Washington, D.C., (202) 639-8500.
COPYRIGHT 1992 National Association of Realtors
No portion of this article can be reproduced without the express written permission from the copyright holder.
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Title Annotation:Americans with Disabilities Act
Author:Gibbens, Michael P.
Publication:Journal of Property Management
Date:May 1, 1992
Previous Article:Guidelines for insurance language for leases.
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