The owners of commercial properties need to be aware of their legal obligations to the users of their properties. A variety of legal issues can arise for property owners. One of these is a concern for accessibility for people with disabilities under the Americans with Disabilities Act (ADA).

What is Commercial Property?

Commercial property is real estate that is owned and operated for a business purpose. It is often located in areas zoned for commercial use, which distinguishes it from residential property. It is also different in function and design. 

For purposes of the ADA, if a business serves members of the public, or if it has 15 or more employees, the ADA makes both a commercial tenant and its landlord responsible for making the premises accessible to people with disabilities.

What is the Americans With Disabilities Act (ADA)?

As many businesses, both for-profit and nonprofit, operate in commercial buildings, it is important to understand the implication of the ADA for commercial sites. In a nutshell, the ADA prohibits discrimination against individuals with disabilities in the workplace and in spaces that are open to the public. It guarantees that all people have equal access to goods and services, transportation and housing, as well as employment.

An employer who is covered by the ADA must provide reasonable accommodations to job applicants and employees with disabilities. So, an employer must offer job applicants accommodations even during the hiring process if the applicant needs an accommodation in order to apply for a job.  An employer is also not allowed to ask certain things during the hiring process and must not discriminate against prospective employees with disabilities..

An employer is not required to suffer undue hardship in order to accommodate an employee. The assertion that accommodation of a potential employee’s disability would cause the employer to suffer undue hardship would be a defense to an alleged ADA violation. In determining reasonability, a court would look at the nature of the employee’s work and the workplace environment.

Among accommodations that have been found to be reasonable and the type of accommodation that an employer would be expected to make are the following: 

  • Restructuring jobs; 
  • Making work-sites and workstations accessible;
  • Modifying schedules; 
  • Providing services such as interpreters; and
  • Modifying equipment and policies. 

What is Considered a Disability Under the ADA?

A disability under the ADA is a disability of a physical or mental nature that substantially limits a major life activity. An example would be a person who requires a wheelchair in order to be mobile.

The ADA definition of disability includes people who have a history of a disability, even if they do not currently have the disability. So, for example, a person may have suffered from depression in the past, but does not suffer from depression at the present time. Employers cannot discriminate against employees who have gone through drug or alcohol rehabilitation.

Nonetheless, an employer might reject the person for a promotion because the employer fears that the person’s depression may return. This is a person who has a history of a disability and is regarded as having a disability, even though they do not currently have the disability. This type of discrimination is barred by the ADA.

How Do I Make Sure My Commercial Property Complies with the ADA?

The federal agency known as the “Architectural and Transportation Barriers Compliance Board” (ATBCB; also known as the “Access Board”) publishes guidelines for ensuring that buildings, other facilities and transit vehicles are accessible to people with disabilities. 

These guidelines, in connection with other laws, establish design requirements for the construction and modification of facilities. These standards apply to places of public accommodation, e.g. train stations, commercial facilities, e.g. stores and offices, and state and local government facilities. An owner, or other operator of the covered types of facilities can ensure that they are in compliance by reviewing the guidelines published by the ATBCB.

The ADA requires reasonable access to buildings, facilities and transportation vehicles for people with disabilities.. This is an ongoing obligation for anyone who owns, operates or leases a building that is open to the public.

Making buildings accessible to a person with a disability may mean adding a wheelchair ramp, handrails, or special parking. The guidelines on this issue seem 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; modifying one may be sufficient if it makes the business accessible.

Wheelchair ramps are required in new commercial buildings. Older buildings may need to add them as well where this is accomplishable without too great difficulty or expense. Business owners cannot pass the costs of any necessary modification on to a person who is disabled. Building owners may apply for tax benefits for complying with their obligations in connection with access under the ADA.

Keep in mind that structural modification might not be necessary if other solutions are possible. If structural changes are required, those structural changes would need to meet the ADA standards to the extent feasible. 

What are Considered Public Accommodations Under the ADA?

In the definition of the ADA, public accommodations are businesses, and that includes private entities that are open to the public. Or, they can be defined as businesses that provide goods or services to the public. Examples would be hotels, restaurants, and theaters. Websites must be ADA compliant also and the forms and applications that are offered on websites must be ADA compliant also. The ADA requires reasonable access for people with disabilities to all these types of businesses and spaces. This is an ongoing obligation for owners, operators and tenants of buildings and online spaces that are open to the public.

Making buildings accessible to people with disabilities may mean adding a wheelchair ramp, handrails, or special parking. The point of the ADA is not to impose undue hardship on businesses, so the guidance on the issue of undue burden seems to allow for consideration of timing, expense and other factors in complying with the requirement to provide access. For example, if a business has two entrances, it may not be necessary to modify both entrances, if the business could show that this would be an undue burden. Modifying one entrance to make it accessible might be adequate..

Wheelchair ramps are required in new commercial buildings. Older buildings may be required to add them as well where this can be accomplished without much difficulty or expense. Business owners cannot pass on these costs to the person who is disabled. However, 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. 

What are the Consequences for Failing to Comply with ADA?

The penalties for violating the ADA are steep. An entity could  be fined up to $75,000 for a first violation of the ADA and $150,000 for any violation after the first one. This would apply to commercial enterprises as well as to governments and government agencies. 

In addition, a business or government entity can be sued for failure to comply with the ADA. These lawsuits can be costly to defend and can end with the court ordering the modification that the owner or agency failed to make in the first place. So the business or government agency risks incurring the cost of defending a lawsuit and making the modifications necessary to comply in any event.

Should I Consult a Lawyer for Issues with ADA Compliance on My Commercial Property?

If you are concerned about whether the building in which you do business or your operation are in compliance with the ADA, you may want to consult with an experienced property lawyer or an employment attorney. They can help you understand your responsibilities and can also review any plans for compliance to ensure that they will meet the requirements of the ADA.

If you are a person with a disability who believes you have been discriminated against, it might be time to consult an attorney. An experienced employment attorney can advise you about a situation  involving employment. Or, a real estate attorney can consult about an issue of access to a building or other facility. Whatever the situation, an experienced attorney can help you understand your rights and responsibilities.