If you are the owner of a commercial property, you need to be aware of your legal obligations towards those who use your property. There are a variety of legal issues that can arise for property owners, but one of the thorniest concerns accessibility for persons with disability under the Americans with Disabilities Act (ADA) .
What is Commercial Property?
Commercial property is real estate owned for a business purpose and is often located in commercially zoned areas, which makes it quite distinguishable from residential property by function and often design. Different laws apply to each type of real estate so it is important to properly identify the property at issue to ascertain which legal doctrines might be applicable.
What is the Americans With Disabilities Act (ADA)?
As many businesses are carried on in commercial buildings (by nonprofits and businesses-for-profit) it is important to understand the implication of the ADA. In a nutshell, the ADA prohibits the discrimination of qualified individuals with disability in the workplace (and in spaces open to the public). It guarantees that all persons have equal access to goods, transportation and housing.
In the employment context, a qualified individual is one who can do the job being hired for with or without reasonable accommodations. This may impact an employer’s decision whether to hire a person or not, but the employer is also not allowed to ask certain things during the hiring process. This tends to limit the employer’s ability to discriminate against disabled prospective employees.
Because the employer isn’t required to suffer undue hardship in order to accommodate the employee, this would be a defense to an alleged ADA violation. In determining reasonability, the court will look at the nature of the employee’s work and environment.
What is Considered a Disability Under the ADA?
A disability under the ADA is one of a physical or mental nature that substantially limits a major life activity. This person must have a history of the impairment and is understood by others to have the impairment.
How Do I Make Sure My Commercial Property Complies with the ADA?
The employer should try to avoid asking questions about the disability or the perceived disability of the any worker. Nonetheless, questions about the person’s ability to perform the functions of the job are permissible as that will help the employer determine the need, if any, to provide reasonable accommodations.
The employer is not required to do so if there is an undue hardship to the employer or the employer would have to reduce quality or production standards. In determining whether the employer has established undue hardship, courts decide on a case-by-case basis by balancing the employer’s financial ability against the benefit of retaining the employee
What are Considered Public Accommodations Under The ADA?
The ADA also covers both privately owned businesses and commercial facilities open to the public, for example, hotels, restaurants, and theaters. The ADA requires reasonable access to these types of businesses and spaces. This is an ongoing obligation if you own, operate or lease the building that’s open to the public.
Making buildings accessible to the person with disability may mean adding a wheelchair ramp, handrails, or special parking. The point of the ADA isn’t to bankrupt businesses, so the guidance on this issue seems to permit consideration for timing, expense and other factors for complying with the requirement to provide access. For example, if a business has two entrances, it may not be necessary to modify both entrances.
Wheelchair ramps are required in new commercial buildings. Older buildings may be required to add them as well where this is accomplishable without much difficulty or expense. Business owners cannot pass on these costs to the person who is disabled. Good news, owners may apply for tax benefits in order to comply with their obligations under the ADA.
Keep in mind that structural modification might not be required where other solutions are possible. If structural changes are necessary, those structural changes must meet the ADA standards to the extent feasible. For example, if the ADA standards calls for a deeper slope than is possible at your particular location, a lower steep may be permitted so long as it doesn’t present a safety hazard for the public.
What are the Consequences for Failing to Comply with ADA?
It is never a good business decision to violate the ADA as what results can be expensive and severe. Violations may lead to fines and an order to fix the violation. As well, if a person is injured as a result of the failure to comply with the ADA’s accessibility requirements, the business owner may be civilly liable for the injuries caused by the violations.
In deciding how to award damages against the owner for the violation, the court may order the modification that the owner failed to make in the first place. It is therefore best to make the necessary modifications to avoid both having to pay damages to the injured parties and having to build the structures anyway to accommodate the disabled members of the public.
Should I Consult a Lawyer for Issues with ADA Compliance on My Commercial Property?
If you are concerned about whether you are in compliance with the ADA or you are a person with disability who believes you have been discriminated against, it might be time to consult an attorney. Whether you need a real estate attorney or an employment attorney, they can help you understand your rights and responsibilities.