ADA Compliance and Defense Blog
On July 23, 2010, the U.S. Attorney General signed into law important revisions to the Department of Justice’s Regulations implementing the Americans with Disabilities Act. The new regulations also include substantial and far reaching revisions to the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which are now known as the 2010 ADA Standards for Accessible Design (2010 Standards). On September 15, 2010, the new Regulations/2010 Standards were published in the Federal Register, thereby triggering two important implementation periods.
Compliance with the new Regulations will be required commencing on March 15, 2011, with the exception of (1) the new obligations of hotels to modify their reservation policies relating to individuals with disabilities, and (2) the 2010 Standards; these two components become mandatory one year later, on March 15, 2012. However, compliance with the 2010 Standards is permitted as of September 15, 2010, and any public accommodation or commercial facility that is newly constructed, altered, or undergoes “readily achievable barrier removal” prior to the March 15, 2012, effective date of the 2010 Standards should include consideration of the new standards and incorporate them as appropriate.
The new DOJ Regulations/2010 Standards affect all U.S. hotels, financial institutions, shopping centers, retail stores, recreational facilities, and other properties such as restaurants that are a classified as a “public accommodation” or a “commercial facility” under the American with Disabilities Act of 1990 (ADA).
The new 2010 Standards impose both technical requirements, (e.g. the specifications a property must meet to be fully accessible), and scoping requirements (e.g. the number of rooms or elements in a facility which must be fully accessible).
Existing property owners will need to review their facilities to ensure they are in compliance with the appropriate standards (either the 1991 or the 2010 Standards) and retrofit where necessary to meet them. Developers of new hotel properties will need assurances from their design and construction companies that the new obligations and restrictions are being worked into their plans. Among other things, the 2010 Standards will require that most recreational facilities and the primary path of travel in employee work areas be accessible –and this is just the tip of the iceberg. The 2010 standards may well require changes to ATM machines and other bank facilities.
Similarly, all public accommodations must review their policies and procedures, auxiliary aids and services, and operations to be sure that they comply with the new Regulations–including the new rules regarding service animals and the obligation to admit disabled individuals who use Segway® PTs– when they become effective March 15 of 2011.
The U.S. Department of Justice is enforcing ADA compliance through audits, voluntary compliance programs and, in some cases, through lawsuits. In some states, like California, accessibility advocates and their plaintiff lawyers have brought ADA lawsuits against thousands of California businesses, including hotels.
You can avoid the surprise of an ADA lawsuit by acting early to bring your properties into compliance.
The new ADA Regulations can be downright confusing to navigate alone. Please call on us to help interpret the Regulations and understand how the new Regulations and the 2010 Standards will affect both the physical and operational aspects of your business.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.