It has been nearly 15 years since the passage of the Americans with Disabilities Act (ADA) and more than 13 years since the implementation of the Americans with Disabilities Act Accessibility Guidelines (ADAAGs).
However, many facility managers and other building professionals still mistakenly believe the ADA does not play an important role in their facilities.
There is a fundamental fact to remember when thinking about the ADA: it is a civil rights law that is complaint driven. This means an individual with a disability who thinks he or she has been discriminated against (or an organization representing them) can file a complaint either with the U.S. Department of Justice (DOJ) or directly in Federal court.
With this in mind, a facility manager might wonder what would be considered “acts of discrimination” under Title III of the ADA. Would it mean:
- Failure to perform readily achievable barrier removal in existing buildings?
- Failure to comply with the ADAAGs for alterations and new construction?
- Failure to modify policies and procedures to ensure equal access to goods and services for individuals with disabilities?
The answer to all of the above is yes.
Over the past 15 years, some areas related to the ADA have changed while others have not. And currently, more changes are in review.
What Has Not Changed
If the facility is an existing building constructed prior to the ADA, the readily achievable barrier removal requirement is ongoing. These requirements have not changed since the implementation of the ADA in January 1992.
However, shortly after that date, readily achievable barrier removal disappeared from the radar screen. Many believed ADA changes would take place as part of renovations, alterations, and new construction.
Unfortunately, budget constraints and shortfalls may have left many renovation plans on the shelf, also leaving required ADA modifications undone and facility management and ownership vulnerable to an ADA complaint for failure to make a “good faith effort” toward a readily achievable barrier removal process.
What Has Changed
There have been some changes since the original implementation of the ADA. Often, these changes come from the courts rather than from the Federal government. Many facility managers may be aware of the high profile employment cases decided in the Supreme Court and how these have defined-and in some cases changed-the ADA. One decision limited the definition of a disability, indicating if someone with a disability used medication to manage his or her condition, then the mitigating factor (legal terminology for medication) removed protections offered under the ADA.
For Title III Public Accommodations (facilities where patrons, customers, and visitors can make a claim of discrimination), courts, lawyers, and individuals can also make determinations that may differ from those originally intended by the ADA. Subsequent costs include lawyer fees, settlement costs, government penalties ($55,000 for the first offense and $110,000 for each subsequent), and relief paid to the individual.
For the past 13 years, the response to ADA compliance has been, “I’m not going to do anything until I have to.” With that scenario in place, facility managers lose control of the compliance process. If a complaint is lodged, the judge, lawyer, and plaintiff will dictate what to do, when to do it, and how much to spend. Unless the organization is a single entity with limited financial resources, it will have great difficulty arguing financial hardship and will be required to disclose financial records as part of its defense.
The other major change to the ADA has been driven more by circumstance than anything-9/11. The events of that day altered the face of emergency preparedness and evacuation. Prior to 9/11, the ADA virtually prohibited asking anyone about his or her disability or the existence of one, even if it was to ensure the person’s safety.
Modifications to those policies have been made since then. Facility managers of commercial buildings face a challenge, considering there can be a myriad of people-customers, employees, and visitors-in the building at any given time. Moreover, individuals can have disabilities unknown even to their employers or co-workers that may inhibit their ability to evacuate the building in an emergency.
What Is Changing?
Shortly after the ADAAGs were implemented in 1992, the U.S. Access Board (the agency charged with developing requirements for accessibility laws) started on the next edition of regulations. Ten years of work has produced a revised set of regulations that was published as a Final Guideline in July 2004. This is an extensive review of the technical and scoping requirements of the ADA with proposed changes and modifications to the requirements. Although they are Final Guidelines by the U.S. Access Board, they are not an Enforceable Standard until approved by the DOJ. That step is taking place right now.
In September 2004, the DOJ published an Advance Notice of Proposed Rulemaking. This document addresses a number of issues related to the enforcement of the ADA-issues that are of particular importance to facility managers. Several proposed changes in the document relate to hotels, malls, and office buildings. For instance, questions 13 through 18 in the document address items under discussion for office buildings.
There are also questions related to issues such as safe harbors for existing facilities. Under safe harbor, a facility’s specific situation may exclude it from making changes to comply with new regulations.
Currently, members of the public can review the document and submit comments on the proposed changes. The DOJ reviews and seriously considers all comments received when deciding on implementation. The deadline for submitting comments is May 31, 2005.
The document can be viewed at www.regulations.gov (Keyword: ADA, then scroll down to the DOJ heading) or at www.adaanprm.org. Comments can be submitted via e-mail from either Web site. Facility managers would do well to review the document and send comments or to contact relevant professional organizations to ensure facility managers are represented.
If the steps below have not yet been completed, facility managers should put these high on their priority lists. In the end, the results will be self evident.
Perform a self evaluation of the facility and identify readily achievable barrier removal. If an evaluation was previously done, dust it off and update it.
Integrate ADA modifications into each year’s budget.
Identify and document any modifications to structure, communications, policies, programs, and procedures that have been made since 1992.
Ensure that all design and construction professionals conform to ADAAG requirements or state/local regulations (if more stringent than the ADAAGs).
Review emergency preparedness and evacuation plans. Ensure there are means to evacuate individuals who cannot use stairs. Train security staff, and perform regular evacuation drills.
Take a trip through the facility, beginning outside. Look at items that would prevent someone with a wheelchair, walker, or cane from entering and using the building. Is there cracked or broken cement in the parking lot or sidewalk? Are there curbs without curb cuts? Apply the same test for someone with a visual or hearing impairment. Is there a step at the door? Are there only revolving doors at the entrance? Does a multi-floor facility only have stairs? Does the rest room have an audible fire alarm and not a strobe?
ADA compliance is not just Federal law, and it’s not just the right thing to do-it’s also good business. Facilities required to comply include commercial office buildings, professional spaces, retail sites, hospitals, restaurants, movie theaters, hotels and motels, and other building types. There are more than 54 million Americans with disabilities. Proactive facility managers will be smart and accommodate them.
Stein serves as the president and CEO of Accessibility Development Associates, Inc. (ADA, Inc.) in Pittsburgh, PA.