So, you formed your business: now you need employees and customers. But one important thing to remember is that once you open your doors for business there are a number of potential liabilities to consider, one of which is compliance with the Americans with Disabilities Act (ADA). We know, it’s just one more thing to add to the list!
Titles II and III of the ADA “prohibit discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA).” To do this, the ADA regulates two key areas: considerations for employees, and considerations for customers that are reasonable accommodations and/or accessible design. But first, let’s get some basic definitions out of the way.
Which Businesses are Subject to the ADA?
The ADA lists 12 very detailed categories that define which businesses operate for the public, and which are therefore subject to ADA regulations. The list is as follows:
- Lodgings with more than 5 rooms that are intended as short-term (a.k.a. hotels, motels, inns, etc.);
- Establishments serving food and/or drinks (a.k.a. restaurants, bars, etc.);
- Theaters, concert halls, stadiums;
- An auditorium, convention center, lecture hall, or other places of public gathering;
- A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
- A laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishments;
- Depots for public transportation;
- A museum, library, gallery, or other places of public display or collection;
- A park, zoo, amusement park, or other places of recreation;
- All places of education, both public and private;
- A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
- A gymnasium, health spa, bowling alley, golf course, or other places of exercise or recreation.
In other words, just about every business imaginable. Be aware that there is no limit on the size of the business; however, the size of the business becomes important later (remind us to tell you how!) **Pro tip: Just assume you are subject to ADA regulations.
Who Does the ADA Cover?
A “disabled” person under the ADA is someone who:
- Has a physical or mental impairment that substantially limits one or more major life activities (e.g. blindness, deafness, paralyzation, etc.); or
- Has a record of such impairment; or
- Is regarded as having such an impairment.
Considerations for Employees
Hiring employees can itself be stressful, but the ADA adds another layer of compliance concerns. When interviewing, proceeding through the hiring process, and even on the job, employers cannot discriminate against an applicant/employee on the basis of his or her disability. Any reasonable accommodations or auxiliary aids (discussed below) apply to applicants and employees, as well as to customers.
Considerations for Customers
Once a business comes in contact with a disabled person, the ADA requires that the business provide a reasonable public accommodation. Reasonable public accommodations consist of: modifications in policies, practices, and procedures; and auxiliary aids. These less invasive measures are a way for a business to stay complaint, which, in this context, is good for both the business and the disabled customer.
1. Modifications in Policies, Practices, and Procedures
This area is highly fact specific and can often times be simple. The best way to illustrate these types of accommodations, we believe, is through examples.
Example One: imagine a department store that has a policy permitting only one patron in a dressing room at a given time; however, a disabled patron cannot dress herself without the help of her daughter. How can the department store be ADA compliant? All the department store has to do is modify their policy to allow the disabled patron and her daughter to be in the dressing room at the same time.
Example Two: imagine a restaurant with a “no animals” policy for food safety concerns. However, there is a customer who has a seeing eye dog because she is blind; should the restaurant deny her service? Again, the restaurant should not deny her service, but perhaps offer her a patio seat.
These are simplified examples, but the idea is that there are instances when businesses must modify their policies to stay compliant with the ADA. But remember, all modifications must be reasonable (we know, that annoying legal term that seems to mean nothing).
2. Auxiliary Aids
In addition to modifications in policy and procedure, certain instances may warrant the implementation of an auxiliary aid. Well, what is an auxiliary aid? This term is used to describe any helpful material or person that assists a disabled person. For example, for a deaf student at a university, the auxiliary aid may be an interpreter or written notes taken by another student in class.
Just as with modification in policy, however, the ADA only requires an accommodation that is reasonable. We asked you to remind us about business size, and here it is: what is reasonable may change depending on the size of the business because the related cost may be too high. This is referred to as undue burden onto the business. When faced with a difficult circumstance, it is usually best to seek the advice of your lawyer.
For a quick guide, we would like to give you more detail on what undue burden is (this applies to all accommodations in this article). The threshold question for undue burden is whether the accommodation is “readily achievable”?
Factors in determining whether an accommodation is “readily achievable” include:
- The nature and cost of the accommodation;
- The overall financial resources and manpower of the business, and what effect the accommodation might have on these resources; and
- The size, location, and type of business.
Perhaps the most extreme of accommodations involve changes to the physical space of a business or the design of a planned business. Accessible design focuses on whether or not a business has met certain standards for disabled persons, such as wheelchair accessible ramps, elevators, larger stalls in public restrooms, etc. The size of the business again comes into play here to assure that the accommodation is reasonable. However, new constructions and new businesses are often mandated, or at least highly encouraged in some cases, to implement ADA compliance in a physical structure at the outset.
Accessible design can be very complicated and costly, so it is important to seek your lawyer’s input to ensure your business’s compliance.
Remember, although some of these ADA regulations can be cumbersome, the goal of the ADA is to promote equality amongst all people. Keep the big picture in mind and promote ADA compliance for a happy, healthy business environment for employees and customers alike!
By: Zachary Avina – 08/02/17
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