4 FM quick reads on ADA
1. Avoiding ADA Lawsuits
Accessibility lawsuits against facilities for alleged violations of the Americans with Disabilities Act (ADA) have been on the rise over the last few years. The best defense against ADA lawsuits is to begin the process of removing accessibility barriers. Barriers are aspects of the built environment that lessen accessibility for a person with a disability. The removal process starts by assessing what needs to be done and then putting in place plans, procedures and policies to guide implementation. Two other steps are crucial:
Develop a written implementation plan. Managers can use data collected from an accessibility audit to create an access plan to remove barriers within a manager's time frame. That is the good news. Enforcement of the ADA standards does not insist on complete and immediate compliance. On the other hand, doing nothing or taking half-hearted, slipshod measures are an invitation to lawsuits and substantial penalties, damages, and costs. Barrier removal is a continuing obligation, and it is expected that a business will take steps to improve accessibility over time.
Execute against the plan. The standards require facilities to remove barriers to the extent that it is readily achievable. Many might think the term readily achievable means "to the extent it is convenient for me." This is simply not so. The 1991 ADA Standards for Accessible Design defines readily achievable as, "easily accomplishable and able to be carried out without much difficulty or expense." If it is not readily achievable to immediately remove a barrier, the business must remove barriers to the extent that it is readily achievable.
Managers should incorporate continuing barrier-removal obligations into both short-term and long-term business planning. Managers might consider incorporating previously identified and deferred barriers into their annual capital planning processes. A record of this process should be part of the accessibility compliance plan.
ADA: Tactics To Avoid Lawsuits
The number of lawsuits filed against businesses and facilities for alleged violations of the Americans with Disabilities Act (ADA) are on the rise in the last few years. These lawsuits have the potential to cost defendants $5,000 or more per complaint.
The best defense against ADA lawsuits is to begin the process of removing accessibility barriers. Barriers are aspects of the built environment that lessen a disabled person's access. The removal process starts by assessing what needs to be done and then putting in place plans, procedures and policies to guide implementation.
Maintenance and engineering managers need to understand the basics of the ADA. Title III of the ADA addresses public accommodations and commercial buildings. This section prohibits discrimination based on disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases or operates a place of public accommodation.
One of the most important things to understand is that the ADA is a civil rights law, not a building code. Local building code officials do not oversee ADA enforcement. The ADA is enforced when discrimination is alleged through private suit or by certain federal agencies, such as the U.S. Department of Justice. Therefore, just because plans are approved by building inspectors or other officials does not mean the building will be ADA compliant.
To truly know whether an organization is compliant, managers should consult with a professional for specific details related to the facility. A consultant can perform an accessibility audit on the facility.
The audit should include the exterior and interior. The exterior audit of the property should include the path of travel from the street, parking and public transportation. The interior audit should include all areas accessed by visitors, customers and vendors.
ADA: Communication Consdierations
Institutional and commercial facilities, operations, and occupants change regularly. As a result of these shifts, maintenance and engineering managers need to communicate as thoroughly as possible about their departments' efforts to comply with facility access guidelines.
One crucial step in the regard is to designate an ADA coordinator. Managers should post the ADA coordinator's name, title, address, phone number, TDD/TTY number, and e-mail in a visible public location, and they should include this information in handbooks and all other organizationwide publications.
Managers also should post ADA-related notices in selected locations and on the organization's web site. They should pay special attention to provide additional information to front-line staff in non-public and outlying areas.
Managers also can use these tactics to communicate their compliance efforts:
- Develop a brochure or an informational packet that provides information on ADA requirements, as well as information on how to contact the organization's ADA coordinator.
- Develop a procedure for providing materials in accessible alternate formats. These alternate formats might include large print, taped materials or Braille. All of these materials need not be available in an alternate format prior to a request. But a procedure should be in place to provide an alternate format in a timely manner if one is requested.
- Review web sites for accessibility. For little or no charge, services such as Bobby Worldwide will evaluate web sites in order to ensure their accessibility.
- Provide accommodation statements on all public notices. Such statements should provide a contact in the event an individual with a disability needs accommodation to participate in a program, service or activity.
- Give members of the public, individuals with disabilities, and organizations representing individuals with disabilities an opportunity to provide input. Tools for this purpose include postings, surveys of facility users, organizations and site administrators, and newspaper notices.
- Use appropriate terminology on all verbal and printed communication. For example, use the term "disabled" instead of "handicapped." Refer to individuals with disabilities as people first, so instead of saying "hearing-impaired person," say "person with a hearing impairment."
ADA: Emergency Preparations
Most maintenance and engineering managers would agree that nothing is more critical than being prepared for an emergency. But most institutional and commercial facilities focus their efforts on business continuity, meaning records, equipment and property.
Although managers and others involved in emergency preparations understand life safety must come first, they often spend too little time developing strategies to get people out of the building, particularly people who cannot use the stairs to evacuate.
How many managers put the primary focus of planning on people, the most important and costliest element to replace? Beyond that, not enough planners talk about ways to plan for evacuations when not everyone is able to use stairs to leave a facility quickly.
For those planners who do consider human capital first, here are a few key questions:
- Do you know everyone who comes in and out and spends time in your building everyday?
- Do you know whether all of these people could safely evacuate the building without using stairs in an emergency?
Not counting individuals with obvious physical disabilities, managers and others involved in emergency planning need to consider individuals with:
- a heart condition
- a breathing condition
- a panic disorder
- a hearing loss.
They also should consider other types of unforeseen needs, such as the young person who just had surgery and is on crutches but works on the 30th floor of the building, or the long-time employee or tenant who recently might have been diagnosed with or treated for cancer or another medical condition.