The Americans with Disabilities Act of 1990 (the “ADA”), as amended by the Americans with Disabilities Act Amendments of 2008 (Pub. L. No. 110-325) (the “ADAAA”) is the primary federal law protecting the rights of individuals with a disability (42 U.S.C. §§ 12101 to 12213). For purposes of the ADA, a disability is generally a physical or mental impairment that substantially limits a major life activity (28 C.F.R. §36.105(a)(1)). ADA compliance is important in both the context of employees as well as the general public and should be taken seriously. Compliance measures may depend on when a building was constructed, how it is maintained, and who owns the building. To minimize potential liability under the ADA, when purchasing an existing building or leasing commercial space, due diligence should include careful consideration of: (i) whether the entire building or any leased space meets all accessibility requirements; (ii) the cost to bring the structure into compliance if the premises under consideration does not meet ADA requirements; (iii) whether ADA liability may extend to architects and other design professionals; and (iv) how to allocate responsibility for ADA compliance between a landlord and tenant. Actions for violations of the ADA can be brought by either the Department of Justice or an individual that was discriminated against, though the remedies available to each party are different.

Best Practices for Public Accommodations
The ADA requires that individuals with disabilities have equal access to the goods, service, and facilities of places of public accommodation. Public accommodations cannot provide a different or separate good or service than that provided to individuals without disabilities, unless doing so is necessary to provide the good or service to individuals with disabilities (42 U.S.C. §12182(b)(1)(A); 28 C.F.R. §36.202). Under the ADA, a public accommodation is a facility operated by a private entity, where the entity (i) falls under one of the twelve broad categories listed in the ADA and (ii) has operations that affect commerce. Most businesses fall under at least one of the twelve categories, which include: (1) hotels; (2) bars and restaurants; (3) movie theaters; (4) stores that sell goods and services; (5) office buildings; (6) entertainment centers (halls and stadiums); (7) public transportation terminals; (8) museums, libraries, and galleries; (9) schools, including universities; (10) parks and zoos; (11) social service centers; and (12) gyms and other exercise and recreational facilities (42 U.S.C. §12181(7)). The ADA defines commerce as travel, trade, traffic, commerce, transportation, or communication: (i) among several states; (ii) between any foreign country and any state; or (iii) between points in the same state but through another state or foreign country (42 U.S.C. §12181). The ADA does not strictly define what it means to operate a place of public accommodation, but case law has defined it as “to put or keep in operation,” “to control or direct the functioning of,” or “to conduct the affairs of” (see Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 849 (9th Cir. 2004)).

Providing equal access to individuals with disabilities may require both structural changes to facilities and modifications to policies and procedures. Covered entities and their counsel must assess the following: (i) whether the facility is an “existing building” (i.e., built before the ADA was enacted) or “new construction” (i.e., built after the ADA was enacted); (ii) whether the facility requires an elevator; and (iii) the facility’s policies and procedures concerning service animals, auxiliary aids, and mobility devices. The ADA sets out different standards for providing equal access in an existing building and in new construction. Existing buildings must remove existing barriers to access while new construction must be designed and constructed to be readily accessible.

In the employment context, the ADA requires employers to refrain from discriminating against qualified individuals because of a disability and to provide a reasonable accommodation to individuals with a disability. The ADA covers private employers and state and local governments with fifteen (15) or more employees, with certain exceptions. Under the law, covered employers are: (i) prohibited from discriminating against qualified individuals because of a disability (which includes job applicants and employees) and (ii) required to provide reasonable accommodation to qualified individuals with a disability, absent undue hardship (42 U.S.C. §§12101-12113). A reasonable accommodation is a change in the work, workplace, or application process that helps make it possible for an individual with a disability to perform or apply for a job.

To understand its accommodation obligations, an employer should determine whether it is covered by the ADA and whether the individual in question is protected by the ADA. Answering questions about individual coverage requires assessing whether the individual is qualified and whether the individual could experience discrimination based on disability. The ADA requires employers and covered employees to engage in an interactive process to determine precise limitations created by the disability and how best to respond to the need for accommodation (29 C.F.R. §§1614.203(d)(3) and 1630.2(o)(3)). The Equal Employment Opportunity Commission (“EEOC”) enforces the ADA and scrutinizes interactive dialogues between employers and employees with disabilities closely. Courts (and certainly the EEOC) typically start from the assumption that the employee already has a disability and focus on how the employer handled the situation once the disability was made known. To minimize risk of ADA-based litigation, employers should consider taking the following steps:


- Train managers or supervisors. Managers and supervisors should be instructed on what to listen for in meetings with employees, how to identify potential requests for accommodations, and who should be contacted (in other words, human resources) when an accommodation request is made to them. 

- Review and update policies. Employers should ensure that employee policies accurately reflect the current state of the law and identify individuals who employees should contact when requesting an accommodation. Without such explicit instruction, a court is more likely to deem any report to any supervisor as adequate notice, even if no reporting relationship otherwise exists between the employee and the supervisor. 
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- Prepare accurate, detailed job descriptions. Ensure that written job descriptions accurately reflect the essential functions and other qualifications of the position. Essential job functions can include physical activity, such as sitting, bending, standing, walking, reaching, and lifting. 

- Engage in the interactive process quickly. Once put on notice of an alleged disability, an employer should schedule a meeting with the employee quickly to start the interactive process as required by the ADA. Ideally, the meeting should be face-to-face. Whether the process can conclude with a single meeting or requires several follow-up meetings, it should be started expeditiously. 

- Engage in meaningful interaction. For the process to be effective, employers may need to request certain types of information, such as information from the employee’s health care provider about work restrictions or availability, or both. Employers may need to talk with the employee’s supervisor to better understand the requirements of the job.

- Consider alternatives to the employee’s proposed accommodation. Just because an employee suggests an accommodation does not mean the employer must agree to it. If the employer can find an alternative accommodation that allows the employee to perform the job (and does not impose unreasonable conditions on the employee), the employer is free to implement its proposed accommodation. Use resources such as the Job Accommodation Network (JAN) Searchable Online Accommodation Resource (SOAR) to explore accommodation options. 

- Document the interactive process. Employers should keep track of all ADA compliance efforts, including efforts at accommodation. The records will be crucial should the situation lead to litigation. 

- Monitor the situation. Employers must monitor the employee’s performance in light of the claimed disability and the chosen accommodation. If a particular accommodation is not effective, it may be necessary to engage in a further dialogue to determine if any additional accommodation is necessary. 

- Remember the FMLA. While the ADA exists to keep employees with disabilities working, employers must not lose sight of the FMLA and its protections. If an employee requires leave as an accommodation, the FMLA may be implicated. Further, in situations where an employee exhausts their FMLA leave, the ADA may nevertheless require an employer to provide additional unpaid job-protected leave as an accommodation.

For additional information or to schedule a consultation regarding ADA compliance issues, we invite you to contact Bruce F. Bronster, Esq. at (347) 246-4650 or visit Bronster LLP at www.bronsterllp.com.