To help small businesses understand new changes in the Americans with Disabilities Act that took effect this week, the U.S. Department of Justice released a primer that covers everything a business will need to know.
The revised ADA regulations clarifies issues that have arisen over the past 20 years, and contains new requirements, including the 2010 Standards for Accessible Design (2010 Standards).
The primer starts off quite poignantly, saying that “new customers” for small businesses include more than 50 million Americans – 18% of the U.S. population, plus their families – who want to patronize businesses welcoming customers with disabilities. At the same time, the primer states that 71.5 million baby boomers will be over age 65 by the year 2030 and demanding products, services and environments that meet their age-related physical needs.
ADA changes have a significant impact to small business owners starting in 2012, when regulations go into effect. Here’s a lowdown of what to expect from these changes.
Starting March 15, 2012, newly constructed or altered physical buildings must be compliant with the law and 2010 standards. Businesses that provide goods and services to the public – including doctor’s offices, shopping centers and restaurants – must remove barriers to entry. Entrance barriers may include simply changes such as eliminating unnecessary steps for entry or providing additions, such as wheelchair ramps, automatic doors and providing accessible parking spaces for cars and vans.
Interior changes are including as part of the new compliance and may require creating more accessible routes (repositioning shelves, tables, chairs, display racks, vending machines or other furniture that can make it difficult for a person with a disability to get around), or placement of shelves and counters to allow customers using mobility devices to access merchandise.
Businesses are not required to take any steps that would result in a significant loss of selling space – so shelves don’t have to be lowered to certain heights. Smaller retail spaces will require at least one checkout aisle must be low and wide enough to be usable by people with mobility disabilities while larger businesses – such as Target or Walgreens – will be required to offer more.
It is important to note that modifications are required only when it is “readily achievable” for a business to do so. Readily achievable means “easily accomplishable without much difficulty or expense.” This requirement is based on the size and resources of a business, as well as the type of building in which the business is operated.
The U.S. Department of Justice will be scrutinizing recreational facilities that were largely exempt from the last round of ADA changes back in 1991. The new regulations will include accessibility requirements for swimming pools, parks, golf courses, boating facilities, exercise clubs and other recreational facilities.
Grandfather provisions often found in local building codes will not exempt businesses from their obligations under the ADA law. Commercial facilities such as office buildings and factories that do not provide goods or services directly to the public are only subject to the ADA’s requirements for new construction and alterations.
Policies and procedures
Businesses of all sizes can lose sight in well-intentioned policies, some of which may inadvertently discriminate against a customer with a disability. Last year, Abercrombie & Fitch found itself slapped with a lawsuit after failing to allow a girl with autism to be accompanied by her sister in the store’s dressing room.
Under the new ADA direction, businesses will be required to take a closer look at policies, to address the needs for people with disabilities. A clothing store, for example, must modify their policy of permitting only one person at a time in a dressing room to allow a companion if one is requested. Policies that would result in a fundamental alteration – a change in the essential nature of the business – will not be required.
Employees are expected to actively look for opportunities to assist customers with disabilities. For example, a grocery store clerk is expected to help a customer using a wheelchair to retrieve merchandise from high shelves, or help a person who is blind maneuver through a store’s aisles. That’s just good business sense, and should already be part of a company’s hiring policy.
If you’re a business owner, you may have an ADA-compliant sign on your door that says something like: “Only service animals allowed in the store.” Up until now, the term “animal” has been intentionally left vague. The DOJ now clarifies that service animals are trained dogs and not other types of animals.
Additionally, a trained dog must perform one or more tasks directly related to the person’s disability – such as helping a person who is blind navigate a store or offering audio cues to a person who is deaf. Animals that offer comfort, therapy or emotional support are not considered service animals and are not required to be allowed into a store or building.
To that end, in situations where it is not apparent that the dog is a service animal, a business may ask two questions: 1.) Is the animal required because of a disability; and 2.) What work or task has the animal been trained to perform?
While this news will require people with disabilities who use other types of animals as companions – such as ponies or monkeys – to leave them at home, it will give greater clarity to business owners and allow them to create more defined policies. It is still clear that trained service dogs are welcome wherever a person with a disability goes, and companies that don’t adhere to this rule may find legal trouble. For example, a few years ago, the DOJ sued Walmart for treating customers with service dogs poorly, and challenging their access rights. Walmart has since updated their policy on allowing service animals. (This information can now be found here).
In 2009, a judge dismissed a disabilities lawsuit against Walt Disney Co. after three park-goers sued the theme-park operator for not letting them bring Segway Personal Transporters into the park. Though Disney offers personal four-wheeled scooters to those who need mobility assistance, the plaintiffs claimed that a ban on the two-wheel transporters at Disney’s theme park in Florida violated the ADA.
The DOJ has now clarified the ADA on this issue, saying that personal mobility devices such as Segways, golf carts and other devices designed to operate in non-pedestrian areas must be permitted – unless the business can demonstrate that the particular type of device cannot be accommodated because of legitimate safety requirements. Issues that will be considered include: type, size, weight, dimensions, speed of the device and the business’ volume of pedestrian traffic.
Businesses may ask individuals using power-driven mobility devices for a credible assurance stating that the device is required because of a disability. An assurance may include, but does not require, a valid State disability parking placard or other Federal or State-issued proof of disability.
Businesses sometimes struggle with knowing how to best communicate with a person with a disability. The ADA revision requires businesses to take steps necessary to communicate effectively with customers with vision, hearing and speech disabilities.
To allow interpretation based on the business, this area of the law was left intentionally flexible. As noted in the primer, “what is required to communicate effectively when discussing a mortgage application at a bank or buying an automobile at a car dealership will likely be very different from what is required to communicate effectively in a convenience store.”
As such, the goal under the ADA is for businesses to actively seek and implement practical solutions for communicating effectively with their customers. A person who is deaf might be served by simply providing written notes at a bank. A person who is blind can have a restaurant menu read aloud to him by the waiter. If an important document must be reviewed and a person reviewing the document is visually impaired, the document can be e-mailed and read using screen-reading technology.
The DOJ expects businesses to be responsible by providing a sign language, oral interpreter or video relay service to a person who is deaf or hard of hearing unless doing so in a particular situation would result in an “undue burden” (significant expense). Interpreting services can cost up to $200 an hour; it will generally depend on the nature of the event – an important medical conversation will require an interpreter, while a bank deposit transaction likely will not.
The revised ADA is not just about making modifications to ensure your business is accessible with the law. The DOJ wants businesses to be proactive – and look for ways in which all of your customers can have equal access to the goods and services you offer. Without accessibility, access or communications plans, you’re essentially turning away new and existing customers who will take their business elsewhere.
The IRS wants to help, too, and offers a Disabled Access Credit for small businesses that undertake barrier removal and alterations, or provide interpreters or accessible formats for their materials. The IRS also offers a $15,000 per year tax deduction for businesses of all sizes for costs incurred in removing architectural barriers in existing facilities or alterations. (Read my recent blog post on tax credits to learn more.)
If you have questions you can contact the ADA Information Line at 800-514-0301 or take an online course that explains the ADA’s requirements for businesses.
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