* Disclaimer: This is general legal info, not a substitute for - - PowerPoint PPT Presentation

* Disclaimer: This is general legal info, not a substitute for Legal Counsel * * Disclaimer: This is general legal info, not a substitute for Legal Counsel *

Mission of the Americans with Disabilities Act (A.D.A.)

• Equality and independence
• Prevent discrimination against

disabled people and allow people with disabilities to participate fully in everyday life

• ADA regulations can benefit

businesses by expanding their customer base.

• Studies show that when a person

with a disability finds a business that is accessible, they are likely to be repeat customers

What is a Disability?

• According to the ADA:
• The term disability covers someone

who has a physical or mental impairment that substantially limits

• ne or more major life activities,

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

Must All Businesses Comply with the A.D.A.?

• Employers
• Businesses that provide “public

accommodations” & commercial facilities

• There are 12 categories of public

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.

Categories

• f A.D.A.

Compliance

• General non-

discrimination measures

• Reasonable

accommodations

• Building accessibility
• Existing facilities
• New construction
• Alterations
• Website accessibility

Which one of these is a service animal?

Service Animals Perform Tasks for Individuals with Disabilities

• A business may ask only two questions:
• 1. Is the animal required because of a disability; and
• 2. What work or task has the animal been trained to

perform

• Businesses cannot require proof or medical

documentation.

• Commercial airline and housing rights.

More Protection

• 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

Telecommunications Relay Service

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: 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

Perceivable - Operable - Understandable - Robust

Steps Towards Digital Accessibility

• Consult WCAG 2.0 Level AA
• Use alternative (alt) text to describe

multimedia

• Provide keyboard accessibility
• Make checkout accessible without

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.

Undue Burden

• If a specific communications

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

• Defined as "significant difficulty or

expense."

Is the Space already compliant with 1991 A.D.A. standards?

• Ask your building manager or owner

whether the building is already compliant with 1991 standards. If so, there is generally no need to make changes to comply with the 2010 standards.

• The 2010 amendments added

some new categories of facilities 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
• kay 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

New Construction Requirements

• Newly constructed facilities

should comply with 2010 A.D.A. standards.

• Consult state specific regulations

and A.D.A. standards for accessible design requirements.

Requirements for Alterations

• If a business undertakes an alteration,

it must, to maximum extent feasible, make it accessible.

• 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

• ther 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.

Tax Benefits

• Businesses with 30 or fewer full

time employees or with total revenues of $1 million or less in the previous tax year can get a tax 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.

How Businesses Might Face a Claim

• 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 3x actual damages -- no less than $4,000 per violation, + attorney fees & related costs ○ 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

California’s New Construction Accessibility Law - Senate

Bill 269, in effect as of May 10, 2016

• To fight frivolous lawsuits and

encourage compliance, SB 269 created a rebuttable presumption that certain “technical violations” do not cause difficulty, discomfort, or embarrassment for the purposes of minimum statutory damages ○ 15 days to cure upon receipt of civil lawsuit based of technical violation

• 120 days from CASp inspection to fix

violations. ○ If sued during this period, business are not subjected to statutory

• penalties. *This option is only

available to businesses without any existing complaint

Take Steps to Prepare Yourself Before Any Complaint is Made

• Bring into compliance!
• Check your lease / ask your landlord:

○ Who is responsible for making sure that your leased business space complies with ADA regulations ○ When was the last time the building was remodeled (i.e. pre-1993) ○ Ask if the space has been inspected by a Certified Access Specialist (CASp)

• Get a CASp inspection

○ Reveals construction-related issues ○ Provides Inspection Report & Disability Access Inspection Certificate upon finishing compliance schedule

Take Complaints

• r Demands

Seriously

• Don’t fail to respond
• Contact your insurance carrier to see if

defense counsel is covered, otherwise, contact an attorney

○ damages may be reduced if construction related accessibility violations are fixed within 30–60 days

• Settlements don’t address your

problem; Do not agree to remedy only the (initial) items identified by the plaintiff

• Photograph all areas of your property

especially any alternatives available to the plaintiff

The Specific A.D.A. Regulations Found Here:

http://www.ada.gov/regs2010/2010ADAStandards/ 2010ADAstandards.htm#titleIII

A.D.A. INFORMATION LINE to speak with an A.D.A. Specialist. 800-514-0301 (Voice) and 800-514-0383 (TTY) M-W, F 6:30 a.m. – 2:30 p.m. & Th 9:30 p.m. – 2:30 p.m. Calls are confidential.

Addendum

• Loc
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• I. CASP – LOCAL SUPPORT FOR

BUSINESSES TRYING TO COMPLY

• A certified access specialist (CASP) is a person who has

been tested and certified by the state that business

• wners can hire to assess accessibility.
• CA state law now provides that a business owners can

voluntarily hire a CASP to inspect their buildings to ensure compliance with disability access standards and

• btain an inspection report as proof of inspection.
• A business implementing recommendations of a CASP

would be entitled to a 90 day hold on any legal proceedings and is eligible for an early evaluation conference with the judge in case of a lawsuit.

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USING THE CASP INSPECTION TO AVOID DAMAGE AWARDS

Under California Law:

• A CASp inspection offers limited protection from statutory

damages ($1000 per occasion) in the event an ADA violation claim is filed with the court.

• Owners have a grace period from liability for statutory

damages, if they achieve compliance within 120 days of the CASp inspection. Owners can extend this period for 180 days if the owner is in the active permit process.

• If the owner does not correct the violations within the 120-

day period of the original inspection, the owner cannot extend the grace period by arranging another inspection.

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• II. COMMERCIAL LEASING AND THE ADA
• Private individuals can sue both Landlords

and Tenants for non-compliance with barrier removal obligations under the ADA.

• Landlords commonly try to pass ADA

retrofit costs to Tenants via lease (watch for language like: "Tenant responsible for complying with all laws…”)

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IMPORTANT LEASE CLAUSES: EFFECT OF ADA ON TENANTS (CONT.)

• For all leases signed after January 1, 2017, the Landlord is

required to disclose whether an ADA compliance (“CASp”) inspection was conducted on the premises.

• Tip: Before signing a lease, negotiate for a compliance inspection

and statement in lease of who will cover inspection and barrier removal costs.

• If there is no inspection before signing the lease, then propose a clause

requiring Landlord to conduct ADA barrier removal if premises found to be

• ut of compliance; or limit Tenant’s responsibility for ADA upgrades that

are specific to Tenant’s particular use.

• Tip: Landlord may agree to incorporate ADA upgrades into their

pre-move-in improvements.

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NEGOTIATING ADA-RELATED IMPROVEMENTS

Your Leverage will always be greatest BEFORE you sign.

• Unless the agreement says otherwise,
• Landlord will usually be held responsible for maintaining building’s structural

elements (roof, load-bearing walls, foundation, etc.) and common areas.

• Tenant will usually be held responsible for maintaining interior of the

premises (including fixtures, business equipment).

• Suggestions:
• List out what Landlord will fix and what Tenant will fix and where.
• If major improvements are needed, you can negotiate for

amortizing the cost over time.

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Questions?

Contact: Bill Kell, Supervising Attorney wkell@law.berkeley.edu (510) 642-4050 Désirée Lafleur, Deputy Attorney dlafleur@berkeley.edu

@NewBusinessPracticum