By Kevin Hughes
From the May/June 2015 issue
Most facility owners and users understand the importance of empowering equal access, but that doesn’t make it easy to achieve full compliance with complex and challenging changes around the Americans with Disabilities Act (ADA). With the 25th anniversary of ADA coming up on July 26, 2015 and three years since the last major overhaul of regulations went into effect, facility executives—particularly those managing chain locations—continue to struggle to achieve compliance across their full portfolio.
Now well out of the grace period for compliance that ended in 2013, violation fees and litigation are adding up, particularly for multi-location portfolios. Last year alone saw more than 5,000 ADA related lawsuits filed, according to a white paper by JLL, and the amount of ADA violation fee charges topped $100 million. Even so, those figures do not include the penalties paid in compensation to injured parties, which can also be substantial when violations are confirmed. The fees add up for chain locations rapidly, since many facilities across a portfolio tend to share similar construction layout and design. Thus, when a violation is cited in one location, it can quickly lead to a host of duplicate strikes across the country.
In short, what facility leaders don’t know about ADA updates, violation penalties, and compliance improvement tactics can cost them.
Some facilities are more vulnerable to violations than others. Big buildings with multiple locations, especially retail facilities like hotels or other traffic heavy buildings like banks and libraries, are more likely to face strict consequences when found to be in violation of ADA regulations. The most common violation is failing to provide equal access for people with disabilities across a large retail portfolio of stores or kiosks, such as ATMs. Another common non-compliance violation occurs in construction begun after 1993 that was not grandfathered in according to the law.
How much of a penalty do organizations face if they are found in non-compliance? Fines can vary greatly, depending naturally on the scale of violation, as well as the degree to which the violator has demonstrated proactive commitment to achieving compliance. Though every penalty varies, many times these soften when an organization has shown a genuine effort to correct the matter. The following numbers speak to the soaring price tag of non-compliance.
- ADA charges doubled from $54.5 million to $109.17 million between 2007 and 2014. Lawsuits spiked from 3,190 to 5,347 in the same time frame.
- ADA violations rose almost 225% between 2007 and 2012, from 1,585 to 3,555, for mental disability claims such as anxiety, manic-depressive, and post-traumatic conditions. During this time, settlement values of these claims jumped 313%, from $4.3 million to $13.5 million, and dollar settlements for physical disability ADA non-compliance claims surged by 238%, from $34 million to $82 million.
- In 2014, the maximum civil penalty increased from $55,000 to $75,000 for a first violation under Title III, when the Department of Justice issued a new rule adjusting for inflation the monetary penalties assessed for ADA violations. The new maximum for second violations is now $150,000, up from $110,000.
The Top Five
While there is extensive literature on compliance requirements, here’s a topline view of the most broadly mission critical updates for most facility executives:
- Facilities must have more accessible entrances. Buildings must now ensure that at least 60% of the available entrances are accessible. In small buildings with only two entrances, this increase means that now both entrances must be accessible.
- Accessible seating must be spread out. Concentrated accessible seating is no longer enough. Wheelchair friendly seating areas must be dispersed throughout the seating area of an entire space, such as in restaurants or stadiums.
- “Safe harbors” no longer apply when elements are altered. Many building features that were in compliance with 1991 ADA standards are “grandfathered” in when new changes went into effect in 2012. However, altering any of these elements after 2012 means they are now bound to the newer, stricter standards.
- Equipment reach ranges must be reduced. Equipment in accessible areas must be no higher than 48″ and no lower than 15″, compared with previous requirements of 54″ and 9″, respectively. Applicable to everything from paper towel rolls to countertops, this change affects a broad range of spaces, from sales floors and restrooms to teller counters.
- Employee work areas must be more accessible. As with customer facing areas, work areas over 1,000 square feet must now also provide accessible circulation routes and a smooth traffic flow.
To develop and build out effective solutions takes specialized knowledge of the regulations as well as savvy project management. A formal plan detailing compliance strategy is key, not only for general success, but also for use in demonstrating good faith efforts should a violation go to court.
Accessibility awareness should extend well beyond facility planning and construction, influencing decisions from equipment and fixture purchasing to maintenance. Even new buildings designed for complete accessibility can become inaccessible if key elements like parking areas or sidewalks and ramps are not well maintained. With a proactive approach to removing barriers to access and in-depth understanding of requirements, facilities owners can avoid violations at the ideal point in the process—before they occur.
Hughes is a senior vice president for JLL, based in Chicago. He is responsible for delivery of multi-site and complex, single-site program management throughout the U.S. He has managed all aspects of the program including vendor selection and contracting, budgeting and scheduling, client relationship management, and IT coordination, with a specialty in addressing ADA for clients’ retail portfolios.