ADA Things We Hear: SMH!

February 6, 2020

Written by John McGovern

The Americans with Disabilities Act (ADA) does have some requirements that make a state, local government, business leader, property owner or manager, or nonprofit leader search for an answer. In our travels from the west coast to the east coast to the south and to the north, here are some of our favorites we have heard at conferences, on phone calls, or in an email.

"We are exempt from the ADA, our building was built in 1940.  We don’t have to do anything."

That is a great misunderstanding.  If you area business, nonprofit, or state or local government, and you open the doors to the public, you are subject to the ADA requirements.

There are two different approaches here.  In existing government facilities, an access audit and transition plan for barrier removal is required.

For existing facilities owned by a business or nonprofit, barrier removal that is readily achievable must occur on an annual basis.  The term “readily achievable” means a retrofit that is able to be accomplished without great difficulty or expense.  These are terms that are defined differently business to business.

"We only have to make existing sites accessible when we make an alteration…right?"

No, that is wrong.  As discussed above, facilities owned by states and local governments, businesses, and nonprofits have an ongoing obligation to make retrofits at existing sites.  Do not sit back and wait for an alteration to make access occur.

"It is a brand new building (or playground or pool) so we know it is fully compliant."

In our experience, accessibility is a function of four factors: design, construction, installation, and maintenance. We often see a design professional get it right, but the contractor gets it wrong.  And we do see the design professional get it wrong…not too long ago an architect for a large project insisted the reach range for access to operating mechanisms was 54” above the finished floor (aff).  That is not so, it is a maximum of 48” aff, as of the 2010 Standards for Accessible Design, which became effective March 15, 2012. Certainly, lack of maintenance of a site asset can render a compliant ramp, elevator, door, or playground surface noncompliant.

As the Russian proverb Doveryai, says, “trust, but verify.”

"We are a private health club…we are exempt from the ADA."

Not so.  Most privately owned health and fitness facilities are no different than a Hilton Hotel, Starbucks, or Shell station.  You arrive, pay your room rate (or buy a latte, or swipe your card and fill up your gas tank), and voila, you can now use the business premises.  Same for a privately owned fitness center.  If you pay your initiation fee and monthly dues, you too can use the facilities.  Calling a site like this a club sends the wrong message that membership is exclusive…it isn’t.  If the member wannabe has $19.99 a month, welcome aboard! 

There is an exception for private clubs but it is very, very limited. If your business advertises and opens itself to the public, you are not a private club in most circumstances.