Ken Cleaver

by Ken Cleaver

Team Lead, Healthcare + Higher Ed Studio

Benefits of Compliance with the Americans with Disabilities Act and Common Misconceptions About the Law

  • MARCH 14, 2019
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Benefits of Compliance with the Americans with Disabilities Act

Every company or organization wants to ensure that everyone can access the buildings they design and construct. Providing access is, quite simply, the right thing to do. When everyone can access buildings in order to work or to receive services, all of society benefits.

Ensuring access for people who have disabilities is also the law. The Americans with Disabilities Act (ADA) is an employment-based civil rights law that prohibits workplace discrimination based on disability. Organizations that are found to be in violation of the ADA’s Title II or Title III provisions pay an average of $16,000 in a settlement. The price tag is often four or five times that amount if, rather than settling, the company takes the case to court. In addition, organizations that are public entities risk the loss of federal funding.

How are ADA violations discovered?

The Disability Rights Section of the U.S. Department of Justice schedules inspections for public entities. From year to year, the Disability Rights Section focuses on evaluating these Title II entities under the Project Civic Access program, and often chooses certain types of organizations each year to visit.

Sometimes, a person who has a disability files a complaint against an organization. The person might have had difficulty accessing a building in order to work or to receive services.

In other cases, legal firms employ people to look for easily observable ADA violations without actually entering businesses. These “drive-by lawsuits” are sometimes filed under the names of individuals who are not patrons of the business in question. The Department of Justice provides a helpful guide for Title III entities to assist with compliance.

Sidewalk access in elementary school parking lot

How can a public entity or business comply with the ADA and avoid lawsuits?

Public entities have a set of rules that they must follow in order to fully comply with the ADA’s Title II. Here at M+A, we help to resolve the details of accessibility codes, walk through the process with a client, and create an action plan.

Step one in ADA compliance requires that a Title II entity designate a person who coordinates all ADA issues, and establish a grievance procedure. This “ADA coordinator” is in charge of developing all required materials, training staff on codes, and investigating complaints.

Step two is a self-evaluation completed by the organization in question. If the business has 50 or more employees, it should submit an assessment every three years. Our team at M+A specializes in this process and can assist with this sometimes daunting task. We bring in a carefully coordinated group that thoroughly checks for all possible areas of non-compliance.

Step three is a transition plan. M+A helps to review the list of barriers in the self-evaluation, and helps create a plan to remedy or remove them, including a budget and reasonable timeline. The timeline in this transition plan proves your commitment to action, as well as guidelines for your team.

Floor plan showing ADA building issues

Private businesses and organizations under Title III are not required to follow the same process followed by public entities in order to comply with the ADA. However, in order to avoid potential lawsuits, private companies should be proactive in determining whether they have any ADA violations. M+A is often asked by clients to evaluate their spaces and provide direction on how they can achieve compliance with the ADA.

I, along with other senior project managers at M+A have extensive experience with projects that require ADA surveys and assistance. Our teams leverage tablet-based apps and cloud based documentation to streamline the self evaluation and transition plan processes.

Report showing single accessibility issue

Common Misconceptions about Accessibility Compliance

In a future post, we will consider common errors in design and construction and how to avoid them. The most common misconceptions about accessibility we hear in conversations with clients and colleagues are:

1. “Grandfather Clause” for Existing Buildings
If a building was constructed prior to the 1991 ADA, all barriers must be removed over time - and 20% of construction costs should be applied to removing barriers - with only a few limited exceptions for historic preservation and structural infeasibility. If a building was compliant with the 1991 ADA Accessibility Guidelines (ADAAG), but not the 2010 ADAAG, it has safe harbor under the 1991 guidelines until construction activity occurs, at which time it must be made compliant with the current 2010 ADAAG. There is no “grandfather clause.”

Aquinas Hall, exterior door

2. “ADA is a Building Code”
ADA is actually a civil rights law enforced by the US Department of Justice, not a construction-based building code. It is up to each state to implement the requirements of ADAAG in their building codes. For example, Ohio implements the law by incorporation of the ICC A117.1-2009 accessibility standard and the provisions of Chapter 11 of the Ohio Building Code.

3. “Construction Tolerances”
Construction is not always a precise activity, and frequently construction tolerances are cited as reasons to accept work that is not compliant. ADA and ICC are clear about when industry tolerances are applicable. If a range of dimensions (e.g. 16”-18” from a wall) is prescribed, then the range IS the tolerance, and anything outside of that range - even a fraction of an inch - is not compliant and cannot be accepted.

Measuring grab bar location

4. “Employee Work Areas”
Although there are exceptions for spaces like mechanical rooms which are only occasionally accessed by service personnel, Title I of the Americans with Disabilities Act prohibits private employers, State and local governments, etc. from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. In other words, although back of house areas of buildings used by employees only may not seem to require full accessibility because they are not used by the general public, they can also be considered potential sites for discrimination against employees with disabilities if reasonable accommodations are not provided. Strict adherence to the building code may allow back of house areas to only comply with the approach, entry and exit requirements for employee work areas. However, best practice is to make all areas fully accessible to everyone to minimize opportunities for grievances or litigation.

Ken Cleaver

by Ken Cleaver

Team Lead, Healthcare + Higher Ed Studio

For the past five years, Ken has expanded accessibility services at M+A. He loves being able to make a difference by in other's lives by creating spaces or renovating existing facilities to be accessible for all. Reach out to Ken if you have any questions about how to meet the requirements of the law or go beyond ADA.