A bill that passed the U.S. House of Representatives last month would update the Americans with Disabilities Act (ADA), which outlawed discrimination in employment, housing, and other areas on the basis of the applicant being disabled. The ADA also requires most businesses and buildings to accommodate disabled people, with features such as mandatory wheelchair ramps.
The new legislation would require that any person claiming discrimination must first provide written notice, allowing 60 days for an owner to acknowledge receipt of the complaint, plus an additional 120 days before legal action can be initiated. Supporters argue the bill will crack down on frivolous lawsuits that benefit lawyers more than disabled Americans. Opponents counter that the bill would significantly hamper disabled Americans’ abilities to remedy ADA violations.
Here at PlanForce, our goal is to create environments where businesses and all people can thrive. We’ve had a number of clients facing civil lawsuits over the past few years who come to us to evaluate their property and help them remove barriers to accessibility. This is hardly surprising, as records show that the number of ADA-related lawsuits in the U.S. has almost tripled since 2013.
So what should building owners be aware of, either before they get an ADA-related lawsuit, or in the unfortunate case where they do?
3 Triggers to ADA Compliance
In general, there are 3 triggers that cause an owner or tenant to need to address accessibility barriers:
- Pulling a construction permit
- Changing the occupancy classification of the building
- Getting an ADA-related lawsuit
The first is a permit. If you pull a permit, state law says that you also have to address any outstanding accessibility barriers. If you’re remodeling more than 80% of your facility, you’ll need to bring it up to meet the accessibility code.
Even if you’re remodeling less than 80% of a site, you still have to do some work. In that case, you need to calculate 20% of the cost of your construction budget and spend that amount (in addition to the rest of your budget) to remove accessibility barriers. If the cost of removing a given barrier exceeds that 20% of your construction budget, then you go to the next item on the accessibility hierarchy (see below), and you spend your money there.
So what is this hierarchy? Well, according to the Minnesota Accessibility Code, some barriers to accessibility are more important to remove than others. Here’s what the regulation says:
1112.7.1 Priority for application. Priority for application of the 20 percent cost for the primary function area shall be as follows:
- Accessible path of travel to the primary function area, such as exterior route, building entrance, interior route, or elevator;
- Accessible toilet facilities;
- Accessible parking;
- Accessible telephones; and
- Accessible drinking fountains.
When removing barriers, you start at the top of the hierarchy and move your way down.
The second trigger for making ADA improvements is if you change the building’s occupancy type. If, for example, your property is classified as Storage, and you wanted to change it to Manufacturing (or Business), you would need to bring it up to code, regardless of the cost.
The final trigger is a civil lawsuit, where someone says that your property violates the law in some specific way. We also see lawsuits that say, in addition to the enumerated violations, anything else that’s not in compliance is also part of the suit. In that case, the plaintiff could come back with additional complaints at a later date.
In addition to fixing the problems, building owners can be found liable for attorneys’ fees—both their own and the plaintiff’s, which can be a very expensive proposition. (This is the crux of the complaint against the current law.)
It’s important for building owners to understand that this is going on, at least to some extent. The ADA has been around for 30 years, and while newer buildings might be in good shape, older buildings may not fully comply.
Are You Leaving Yourself Vulnerable?
If a plumber installs a toilet that’s not accessible, you can bet their contract says they have to bring it up to code. Our contracts are the same way, so we spend considerable time ensuring ADA compliance on every project. It may be hard to hear that your building needs accessibility improvements, but ultimately it’s just good business!
We always strive to alert owners and tenants to barriers to access. Removing these barriers protects business owners and, more importantly, makes our built environments available for all of us to enjoy.