The U.S. Department of Justice revised and expanded regulations under the Americans with Disabilities Act (ADA), effective March 15, 2011. The revisions may have far-reaching implications for owners and operators of businesses, developers, lenders, commercial landlords and tenants. Compliance with the new regulations is mandatory by March 15, 2012.
Critically, the revisions change Title III of the ADA, which covers private enterprises and facilities. Common examples of facilities covered by Title III include financial institutions, hospitals, doctors’ offices, restaurants, shopping centers, retail stores, hotels, movie theaters, private schools, convention centers, day care centers, fitness clubs, sports stadiums and other recreation facilities.
Notably for business owners, the 2011 regulations replace the 1991 ADA Standards for Accessible Design with the 2010 ADA Standards for Accessible Design. The 2010 Standards provide new specifications for a wide range of architectural access features, including public stairwells, elevators, restrooms, parking spaces and signs. By way of example, restrooms were required to be configured with a “front” method of allowing a disabled person to transfer from a wheelchair to a toilet under the 1991 ADA Standards. Under the 2010 ADA Standards, a bathroom stall must provide clearance for an individual to access the toilet both from the front and the side.
Although there are some “safe harbor” provisions for construction or alterations made under the 1991 standards, owners and operators of facilities covered by the ADA should inspect their premises to verify compliance. Alteration may be required depending on the unique facts for each owner or operator. Likewise, developers should obtain assurances from design and construction contractors that plans for new projects account for the amended regulations. Financial institutions making loans for such projects should make similar design requirements, as well as appropriate operational requirements, of their borrowers.
Both commercial landlords and tenants should also take note of the new regulations. Federal law dictates that regardless of contrary terms in a lease, both the landlord and the tenant are liable for noncompliance with Title III of the ADA. Thus, even if a commercial lease states that the tenant is responsible for ADA compliance, a disabled individual may sue both the landlord and the tenant for noncompliance with the ADA.
The Department of Justice enforces ADA compliance through audits, voluntary compliance programs and, in some cases, through lawsuits. Accessibility advocates and plaintiff’s lawyers have brought ADA lawsuits against Pennsylvania businesses since the ADA’s inception. Business owners can expect that the compliance issues surrounding implementation of the new regulations will lead to a new wave of enforcement actions and suits. An eye for compliance is the best way to ensure this does not happen to you.
This article was published in the October 24, 2011, edition of Eastern Pennsylvania Business Journal.
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