ADA Alert: New Regulations Now in Effect

Existing U.S. properties may need retrofitting, New construction will have to comply with new guidelines

ADA Alert: New Regulations Now in Effect

On July 23, 2010, the U.S. Attorney General signed into law important revisions to the Department of Justice’s (DOJ)Regulations implementing the Americans with Disabilities Act. The new regulations include substantial and far reaching revisions to the Americans with Disabilities Act Accessibility Guidelines (ADAAG), which are now known as the 2010 ADA Standards for Accessible Design (2010 Standards). On September 15, 2010, the new Regulations/2010 Standards were published in the Federal Register, thereby triggering two important implementation dates: March 15 of 2011 and March 15 of 2012.

Compliance with the new Regulations will be required beginning March 15, 2011, with the exception of (1) the new obligations of hotels to modify their reservation policies relating to individuals with disabilities, and (2) the 2010 Standards. These two components will be mandatory effective March 15, 2012; however, compliance with the 2010 Standards is permitted as of September 15, 2010, and any public accommodation or commercial facility that is newly constructed, altered, or undergoes “readily achievable barrier removal” prior to March 15, 2012, should include consideration of the new 2010 Standards and incorporate them as appropriate.

The new Department of Justice’s Regulations/2010 Standards affect all U.S. hotels, financial institutions, shopping centers, retail stores, recreational facilities, and other properties such as restaurants that are classified as a “public accommodation” or a “commercial facility” under the American with Disabilities Act of 1990 (ADA).

The new 2010 Standards impose both technical requirements, (i.e. the specifications a property must meet to be fully accessible), and scoping requirements (i.e. the number of rooms or elements in a facility which must be fully accessible).

Existing property owners will need to review their facilities to ensure they are in compliance with the appropriate standards (either the 1991 or the 2010 Standards) and retrofit where necessary to meet them. Developers of new hotel properties will need assurance from their design and construction companies that these new obligations and restrictions will be worked into their plans. Among other things, the 2010 Standards will require that most recreational facilities and the primary path of travel in employee work areas be accessible — and this is just the tip of the iceberg. The 2010 Standards may well require changes to ATM machines and other bank facilities.

Similarly, all public accommodations must review their policies and procedures, auxiliary aids and services, and operations to be sure that they comply with the new Regulations — including the new rules regarding service animals and the obligation to admit disabled individuals who use Segway Personal Transporters® — when they become effective March 15 of 2011.

The U.S. DOJ is enforcing ADA compliance through audits, voluntary compliance programs and, in some cases, through lawsuits. In some states, like California, accessibility advocates and their plaintiff lawyers, have brought ADA lawsuits against thousands of California businesses, including hotels.

You can avoid the surprise of an ADA lawsuit by acting early to bring your properties into compliance.
The new ADA regulations can be downright confusing to navigate alone. Please call on us to help interpret the Department of Justice’s regulations and understand how both they and the 2010 Standards will affect both the physical and operational aspects of your business.

Martin H. Orlick is a senior member of Firm’s Global Hospitality Group® and a partner in the Firm’s Real Estate Department. He has helped clients with more than 300 ADA cases for hotels and other businesses. He is also a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty at 415.984.9667 or MOrlick@jmbm.com

To see this ADA Alert in PDF form, click here.