* Disclaimer: This is general legal info, not a substitute for Legal Counsel * * Disclaimer: This is general legal info, not a substitute for Legal Counsel *
● Equality and independence Mission of ● Prevent discrimination against the disabled people and allow people with disabilities to participate Americans fully in everyday life with ● ADA regulations can benefit Disabilities businesses by expanding their Act (A.D.A.) customer base. ● Studies show that when a person with a disability finds a business that is accessible, they are likely to be repeat customers
● According to the ADA: ● The term disability covers someone What who has a physical or mental impairment that substantially limits is a one or more major life activities, Disability? someone who has a history or record of such an impairment, or someone who is regarded as having such an impairment ● The most often misunderstood part of this definition is the phrase “regarded as disabled.” ● This phrase becomes important if the employer takes any adverse action due to belief that a disability may exist
● Employers ● Businesses that provide “public Must All accommodations” & commercial Businesses facilities Comply with ● There are 12 categories of public the A.D.A.? accommodations: stores, restaurants, bars, service establishments, theaters, hotel, recreational facilities, theaters, hotels, etc. ● Bottom Line: nearly all businesses that serve the public are subject to the A.D.A.!
Penalty for Non-Compliance ● Fines ● In 2014, the maximum civil penalty for a first violation under Title III of the A.D.A. increased from $55,000 to $75,000; for a subsequent violation the new maximum is $150,000 ● Private lawsuits ● Lawsuit-related costs are typically over $15,000 – usually more than construction costs to make your business accessible.
● General non- discrimination measures Categories ● Reasonable of A.D.A. accommodations Compliance ● Building accessibility ● Existing facilities ● New construction ● Alterations ● Website accessibility
Which one of these is a service animal?
• Businesses cannot require proof or medical documentation. Service Animals Perform Tasks for More Protection Individuals • A business may ask only two questions: with 1. Is the animal required because of a disability; and 2. What work or task has the animal been trained to Disabilities perform • Commercial airline and housing rights.
Telecommunications Relay Service ● Allows persons with hearing or speech disabilities to place and receive telephone calls. ● Staff must accept and treat relay calls just like other calls. ● The communications assistant can explain how the system works
Online Content ● D.O.J. considers all web access points ● Until there is official guidance for private sites, use WCAG 2.0 AA as your standard: Perceivable - Operable - Understandable - Robust Important cases ● National Federation of the Blind v. Target (2006) ● Website = PPA ● Alt text ● National Association of Deaf v. Netflix (2012) ● A.D.A. applies to website-only businesses
● Consult WCAG 2.0 Level AA Steps ● Use alternative (alt) text to describe Towards multimedia Digital ● Provide keyboard accessibility ● Make checkout accessible without Accessibility the use of a mouse ● Use proper tags, titles, and headings ● Utilize audio and visual components ● Include transcripts for videos ● Use scalable (200% resizable) text ● Utilize contrasting color for images and texts
Reasonable Accommodations ● According to the Equal Employment Opportunity Commission, a reasonable accommodation is “any change in the workplace or the way things are customarily done that provides an equal employment opportunity to an individual with a disability.” ● What qualifies as a reasonable accommodation? ● ✅ can cover most things that enable an individual to apply for a job, perform a job, or have equal access to the workplace, and employee benefits such as kitchens, parking lots, and office events ● ❎ does not have to cover removal of essential job functions (e.g., a receptionist having to answer the phone)
There are specific requirements for making built environments accessible, but… Only REASONABLE actions are required! Adjustments to make a business more accessible do not have to impact a small business’s bottom line! No undue burden is necessary.
● Defined as "significant difficulty or expense." Undue ● If a specific communications Burden method would be an undue burden, a business must provide an effective alternative if there is one ● A business's overall resources determine (rather than a comparison to the fees paid by the customer needing accommodation) what constitutes an undue burden
● Ask your building manager or owner whether the building is already compliant with 1991 standards. If Is the Space so, there is generally no need to already make changes to comply with the compliant 2010 standards. with 1991 ● The 2010 amendments added A.D.A. some new categories of facilities standards? that now need to comply with the A.D.A. (golf, exercise machines, amusement rides, etc.)
Changes to Existing Structures ● If a business chooses to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies to those elements.
Requirement: Remove architectural barriers when “readily achievable” ● Businesses should remove physical barriers that prevent a person with a disability from accessing the business or moving around in it. ● Readily achievable means “easily accomplishable without much difficulty or expense.” ● Businesses with fewer resources are not expected to remove as much as those with more resources!
Accessible Entrances ● Providing accessible route into store by installing a ramp. ● Can’t comply exactly with standards? Do as much as possible without impacting safety ● Providing an alternate accessible entrance ● With signs indicating that it exists
Examples - Parking ● Providing accessible parking spaces if you have a parking lot and it is readily achievable to do so. ● Small businesses with very limited parking (four or fewer spaces) must have one accessible parking space; however, no signage is required.
Examples - Accessible Route to Goods and Services ● The path a person with a disability takes to enter and move through the business should not be blocked and be at least three feet wide. ● Temporary blockages are okay for maintenance and repair activities ● Shelves and service counters should be on accessible path, but no height requirements
More Examples ● Accessible route to dining areas, food service lines, service counters, public restrooms
● Newly constructed facilities should comply with 2010 A.D.A. New standards. Construction ● Consult state specific regulations Requirements and A.D.A. standards for accessible design requirements.
● If a business undertakes an alteration, it must, to maximum extent feasible, Requirements make it accessible. for Alterations ● Alteration defined as: remodeling, renovating, rehabilitating, reconstructing, changing or rearranging structural parts or elements, changing or rearranging plan configuration of walls and full-height partitions, or making other changes that could affect usability of facility.
Examples of Alterations ● Restriping a parking lot, moving walls, installing new sales counter/shelves, changing doorway entrance, replacing fixtures, flooring, carpeting. ● Alterations do not include normal maintenance such as reroofing, painting or wallpapering.
● Businesses with 30 or fewer full time employees or with total revenues of $1 million or less in the Tax previous tax year can get a tax Benefits credit for expenses associated with ADA compliance. ● Businesses of all sizes get a tax deduction for costs incurred in removing architectural barriers in existing facilities or alterations up to a maximum of $15,000/year. ● Consider potential disproportionality of expenditures.
● Someone can file a lawsuit with claims under the ADA, CA Disabled Persons Act (CDPA), and Unruh Civil Rights Act (UCRA) ○ UCRA allows plaintiffs to claim How 3x actual damages -- no less than Businesses $4,000 per violation, + attorney Might Face a fees & related costs Claim ○ CDPA allows plaintiffs to claim 3x actual damages -- no less than $1,000 per violation, and attorney fees & related costs ● Title 3 claims do not require notice before a lawsuit
● To fight frivolous lawsuits and encourage compliance, SB 269 created a rebuttable presumption that certain “technical violations” do not cause difficulty, discomfort, or embarrassment California’s for the purposes of minimum statutory New damages Construction ○ 15 days to cure upon receipt of civil Accessibility lawsuit based of technical violation Law - Senate ● 120 days from CASp inspection to fix Bill 269, in violations. effect as of May 10, 2016 ○ If sued during this period, business are not subjected to statutory penalties. *This option is only available to businesses without any existing complaint
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