By Matt Wasson
From the April 2019 Issue
Compliance with the Americans with Disabilities Act (ADA) may not always be top of mind for property owners and facility management, but it is an essential checklist item throughout a property’s life cycle. Becoming compliant (and remaining in compliance) with this federal legislation can save owners and managers considerable time and money, while not prioritizing the ADA and their responsibilities to occupants with disabilities could cost them hundreds of thousands of dollars or more and embroil them in litigation woes.
The first step to ADA compliance is education. It is important to understand what the Act is, what it was enacted to do, and how past and future amendments could impact stakeholders. It is also important to understand how the Act has affected people with disabilities as well as property owners and facility managers, and how owners and managers can identify cost-effective solutions to remain in compliance and maintain safe facilities.
What the ADA is, what it was designed to do, and how it could change. The ADA was passed by the federal government in 1990 to prevent discrimination against individuals with disabilities in all areas of public life. The ADA was promulgated to allow these individuals access to—and to prevent impaired access to—public accommodations, state and local government facilities, and commercial areas.
While the law was enacted in 1990, it was not until 2012 that requirements covered under the Fair Housing Act were put in place for commercial facilities to comply with it. Thus, many facility managers were in the dark about the legislation and how it applied to them until fairly recently—and there may still be some murky waters to wade through. Even for those facility managers aware of ADA compliance, there was no “teeth” for the ADA until the 2012 requirements were put in place. And many facilities professionals have relied on their architects or engineers for information on ADA compliance for their facilities.
Through the ADA, there have been many new and continuing reformations to disability law. And many reformations have become recommendations for consideration. With regard to actual legislation, there is a proposed bill, H.R. 620, that was passed by the House of Representatives in February 2018 that would likely be well received by property owners and facility managers.
The bill puts the onus of notification on the individual with the disability who encounters a barrier to a commercial space, in that the individual must submit a written complaint with enough detail for the property owner to understand the architectural barrier and therefore address the concern. The property owner has 60 days to acknowledge receipt of the complaint and a further 60 days to make substantial progress in resolving the architectural barrier.
There are also circumstances where the property owner/facility manager could make the argument that removing the barrier is not feasible.
The reasoning behind the proposed H.R. Bill 620 is to reduce litigation and allow the property owner or facility manager to address the barrier(s) and bring that aspect of the property into compliance without litigation. In this methodology, the owner or manager would not face lawsuits without being first given the ability to remove the architectural barriers and bring the property into compliance.
Several groups of stakeholders have opposed H.R. Bill 620 on the grounds that it could remove the incentive for owners/managers to comply with the ADA before complaints are brought against them. Discussion about the bill could go on for years, and likely, any changes in the near future will be nuanced.
That said, it is important for facility managers to stay informed to remain ahead of the curve with regard to what they could be held liable for and timeframe for potential renovations.
How the ADA has impacted people with disabilities and owners/managers. There’s no doubt that the ADA has had a positive impact for people with disabilities. These individuals have experienced significantly increased accessibility since most new buildings constructed during the past 10 to 15 years are designed to be in compliance, and many older buildings have been retrofitted.
But that is where the facility manager may struggle—a building that was constructed before 1980 or even before 1990, that has not been retrofitted, was not designed spatially to meet the needs of someone who has a physical impairment. A facility manager might have to implement structural changes to the building so that people with disabilities have access, and this could cost hundreds of thousands of dollars or more—especially if renovations involve elevators or lifts.
Another point to keep in mind is that ADA guidelines aren’t always clear about compliance regarding renovations, which can complicate matters further for facility managers. For example, new paint, carpet, and similar cosmetic upgrades may or may not be considered a significant renovation where certain rules apply; the guidelines are murky and thus, managers may be unsure whether they are required implement certain renovations. This is where an expert in ADA compliance could help tremendously.
Navigating ADA compliance. Clearly, becoming educated about the ADA and what it means for property owners and facility managers is crucial; however, there is a tendency for complacency among many of these stakeholders when it comes to ADA compliance. Complacency could mean facing action from the Department of Justice and/or a tort targeting the property owner. There are plenty of litigators willing to take up someone’s cause, especially since property owners are often perceived to have deep pockets.
Also, even if the repair required to be in compliance is small, there could be a civil liability to it, especially if the noncompliance presents life-safety issues for people with disabilities if not remedied.
The good news for owners and managers striving for compliance is that ADA surveys can be integrated as part of “check-ups” surrounding the health of a subject building or building(s), completed by expert consultants. Our firm, AEI Consultants, recently completed an ADA survey as part of a comprehensive capital planning project for a large university in Alabama that involved 200-plus buildings across the campus. Dates of construction spanned from the 1870s to 2015.
By partnering with the university on this assessment, we were able to generate an extensive capital needs plan comprised of estimated costs for necessary investment in facility assets, including those dictated by ADA, which were categorized by importance. This will allow university stakeholders to tackle the challenge of prioritization and budget head-on.
It’s never too early to consider ADA compliance. For example, we’ve completed evaluations to help owners limit their liabilities as part of the pre-acquisition process. This is one of those life cycle scopes of work that never ends. Further, liability for ADA noncompliance also needs to be considered when renovating commercial spaces. Each upgrade needs to be examined for how it will change the owner’s liability.
There are nuances to ADA compliance that property owners and facility managers may not be aware of, so it can be highly beneficial to bring in a specialist on the issue or at least cultivate a strong relationship with an architect who will help to make educated decisions about whether, when, and what kinds of upgrades should be made. The key is for stakeholders to stay informed, recognize what they do not know or understand, and know when to enlist expert assistance.
Wasson is a division lead, capital planning at AEI Consultants, an international consulting firm that provides comprehensive services to commercial lenders, property owners, managers, tenants, and developers. These services include environmental, property and facility assessments; zoning and energy consulting; site investigation and remediation; industrial hygiene; and construction risk management.
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