Tenants Beware, New Possible Legislation

The recent ADA lawsuit scare has had some landlords behaving strangely.

One of our clients a few months ago was sued by her landlord for not making ADA upgrades.

This is a troubling turn of events. It’s in the ADA that one’s responsibility cannot be passed onto another. The way the chips fell in this case was that the landlord had his tenant sign an updated lease otherwise he would not renew the contract with her. There was a clause in this contract which stated that she was to perform all necessary ADA upgrades to become ADA compliant within 45 days of signing the lease.

She obviously did not know what this meant.

She signed the lease, and was later sued by her landlord for failing to enlarge the restroom.

In this situation, we do not have a complaint stemming from a violation of the ADA — we have a complaint stemming from a breach of contract.

How everything stands from here depends on what can be reasonably understood by both parties as being their responsibility within the ADA — and if when signing she understood what ADA upgrades entailed.

Nonetheless, tenants should more than ever educate themselves about what ADA compliance means, and in all cases at least 1) get an estimate for the work and 2) inform their landlord of the issues with a report of their shared liability. Landlords are legally required to comply with the ADA as well — but this tactic does provide an interesting twist. We’ll have to see if he is successful at forcing his tenant to pay for all the upgrades.

Thoughts? Comment below, or write us at help@accesssolutionllc.com. If you have specific questions about your own fiduciary responsibilities, you can call us at 866 982 3212.

ADA Safe Harbor is over in 2 weeks.

Just a reminder, as of March 15, 2012 safe harbor is over.


All facilities not in full compliance with the ADA of 1992 need to comply with the ADA of 2010.


All facilities which have amenities not covered in the ADA of 1992, such as pools, need to comply with the ADA 2010.


If your commercial property has a pool, it needs to have a lift in place for the public during the ours of operation.  It can be removed during hours of non-operation, but otherwise it needs to be in place.  Lifts cannot be shared between pools.  Also, expenses such as insurance cannot be added to determine hardship cost.

These are just a few of the items hotels and resorts with pools need to consider.


If you have any questions do not hesitate to contact us at 866 982 3212 or email us at help@accesssolutionllc.com.

Or you can also use our new contact form. Send us a message.

Effectiveness of SB1608 in Federal Court

CASp, the Certified Access Specialist Program offers a variety of benefits to businesses that get a CASp certification.  The advantages can be further gleamed from the California Chamber of Commerce website [link: Advantages of CASp for businesses].  The main advantages of CASp certification are many (including a 90 day stay and a limit of $4k per effected violation per visit).  Yet because CASp is California law and the ADA is Federal law, many business owners we’ve talked with are concerned about the effectiveness of SB1608. Business owners concerned about Federal Court sGuits often ask:

“Is CASp worth getting?”

A recent court case provides a real life example of this issue.  A business which had CASp certification was sued in Federal Court.  Now, Federal judges do not have to honor the California law, for instance, they do not have to  grant the 90 day stay.  This judge chose not to.

So, is CASp worth it?

Keep in mind that the differences between Federal and State court for ADA lawsuits are many.  We can’t go over these things exhaustively but we will outline the general principles at this current time.  Keep in mind that your case is unique and if you are under a lawsuit you must consult an attorney, don’t rely on this post for advice — this article is covering a topic.  We are not giving legal advice.

If you are sued in Federal Court, you have the possibility of fixing the issue in question in order to make the lawsuit go away.  Also, if you offer to settle and the plaintiff attorney refuses the settlement and you fix the issue, you may not have to pay for their attorneys fees (the judge may waive those damages).

In California Court, you fixing the issue in question doesn’t make the issue go away.  Violations valid at the time of the encounter remain violations for which damages under the Unruh Act automatically entitle the plaintiff party $4k.  Furthermore, the Unruh Act also specifies that attorneys fees will be paid.

So while CASp can’t provide coverage into areas of Federal law, it does provide some stronger incentives for plaintiffs to sue a CASp business under Federal Court.  If the plaintiff takes you to California court, CASp goes into effect, and you can go straight to arbitration.  However, they take you to Federal Court, you may still get arbitration… if you don’t, your fighting chances are better — you can STILL fix the issue in question and win the suit that way… an option we are told, is not available in California Court.

So overall, in answering the question above, the answer is:


Without CASp, a savvy plaintiff will take you to California Court, in which you will pay the same $4k plus attorney’s fees (potentially tens of thousands of dollars). With CASp you either pay $4k at most, or you can go to Federal court and have a chance at making the issue go away. Get CASp now to cover yourself!

Any questions or concerns?  Call us at 866 982 3212 or email us at help@accesssolutionllc.com.

Judgement Avoids Landslide of ADA Lawsuits

Through Overlawyered.com comes this article from the California Civil Justice Blog.

Cities can worry a little bit less about unexpected litigation costs in their already-strained budgets after a federal court ruling at the end of March ended a 14-year dispute over street curbs and sidewalks in Riverside, CA. A Riverside man named John Lonberg, who uses a wheelchair, first sued the city in 1997 claiming its curbs were sloped too high and lacked dividers to allow disabled access. In the latest ruling, U.S. District Judge R. Gary Klausner ruled Lonberg had failed to demonstrate that Riverside as a whole is inaccessible to the disabled. A ruling in favor of Lonberg could have meant millions of dollars in liability for mandatory modifications.

Riverside’s City Attorney, Greg Priamos, was quoted in the Daily Journal saying the suit was “about money, not accessibility…The only hangup to a settlement earlier in the case was the amount of attorney’s fees. I’m offended by that.”

The lead counsel for Riverside, Greg Hurley, added, “Had Lonberg prevailed, there would have been an avalanche of lawsuits, because no city in the U.S. is totally accessible.”

Read more on the details of the case in the Riverside Press-Enterprise and Daily Journal (subscription required). Note the millions Riverside has spent over the past ten years to resolve the vast majority of its handicapped access issues, and the $221,000 Lonberg received in 2007.

The basic takeaway here, is that Riverside saved by this last judgement. By needing to prove that an entire city is not accessible, cities may be saved from an “avalanche of lawsuits”.

Nonetheless, entities in charge of public right of way should be aware that the ADA applies to them as Federal Civil Rights Law — requiring them to update their sidewalks even if their sidewalks preexist the ADA [New Jersey Protection and Advocacy, Inc. v. Township of Riverside, 2006 WL 2226332 (D.N.J.))].

This issue will be compounded in the near future when the access board, which is quasi-Federal agency to determine accessibility standards, is working on a Public Right of Way Accessibility Guidelines. Once this becomes law, you can be sure there will be a ton of lawsuits to follow as these guidelines explicitly apply to municipalities.

And of course, it’s been proven over and over that businesses are liable since the ADA has requirements that businesses must follow. As the economy gets worse, more and more people will be tempted by this on-going series of ADA lawsuits… so the avalanche for more businesses to get sued is bound to rise even more.

So GET COMPLIANT, either from us or from someone else.

Contact us for questions at 866 982 3212 or email us at help@accesssolutionllc.com.

The best way to avoid ADA Lawsuits is Compliance, not just a matter of Inches and Slopes

Much of the access tips available here: Accessible Accommodation Tips underscore the current fear that business owners have about their buildings not being ADA compliant.

ADA compliance goes far beyond walking through a building with a yardstick or a slope meter.

But even our lawmakers do not understand what’s at stake here.  If you’ve read this blog you should understand by now that the best way to avoid an ADA lawsuit is to become compliant.

What does this mean though, for a good or service to be compliant?  First the lawmakers:

The Bill in Maryland State Senate

Covered by the Maryland Reporter is an ongoing debate in the Maryland State Senate to provide an option for people who feel they have been discriminated against to be able to go to the Maryland Commission to seek injunctive relief rather than suing the place of business.

The state bill would be the first of its kind, if passed, but it would not remove the option for people to sue businesses under the ADA.  What’s the point?

Well, what’s interesting about this bill is that it assumes that the problems of the many ADA lawsuits stem from the lack of alternative channels for the disabled to complain about the business (if the business itself is unwilling to listen) without suing.   Of course, if the individuals suing are asking for money instead of injunctive relief, this bill won’t deter them.

But as an option it sounds good, except as the bulk of the article suggests by past individuals who fought against civil rights, more legislation isn’t really the key.  The root of the many ADA lawsuits don’t stem from a lack of alternate complaint — it’s the lack of compliance with the laws.

I have quoted a relevant portion below:

Several senators talked about lawsuits they knew about where disabled people and crafty attorneys tried to shut down or squeeze money out of establishments. Sen. David Brinkley, R – Frederick County, talked about county restaurants that had shut down because of onerous costs inflicted through lawsuits.

Sen. Allan Kittleman, R-Howard County, said that the lawsuits brought by people with disabilities are a serious issue, referencing a news article a few years old that detailed some of them filed in Maryland. He added that the concerns about discrimination – like the kind Kelley described – are real, even in this day and age. However, he said, anything that’s more onerous for businesses to deal with could be problematic.

“We all want access, but the concern some of us have is the greed for riches,” Kittleman said.

Several senators said that a study couldn’t do much to stop the kinds of lawsuits that were described by their colleagues. Laws are already on the books to try to stop frivolous lawsuits, they argued. Bill sponsor Sen. Lisa Gladden, D-Baltimore City, said the legislation just allows people who feel they were discriminated against to file complaints about it in the local courts closer to home.

“This bill is not new. It’s like moving the car from the driveway to the garage. You don’t change the car, and you don’t move houses,” Gladden said.

Peters’ amendment was rejected with a vote of 18-26.

Sen. Thomas “Mac” Middleton, D-Charles County, recalled that provisions to specifically give protections from false claims were included in a Medicaid bill a couple years ago. He proposed inserting an amendment to do the same thing to protect small businesses from lawsuits filed by disabled people and their lawyers. The bill will be considered further on Friday.

You can read more about it here: http://marylandreporter.com/2011/04/01/blog-discrimination-stories-frivolous-lawsuits-dominate-senate-debate/

This debate brings up a larger issue. There are politicians who side with businesses on this issue, seeking to narrow the scope of the ADA. (To read more about what the current expanded scope of the ADA is, turn here: The Equal Employment Opportunity Commission defines what a Disability is.)

The issue is that there just isn’t much ADA compliance in the public, period.


So what is the Point about ADA Compliance?

If you’ve been reading this blog for a while, even a little bit you’ve gleaned some understanding about what ADA compliance is about. Of course, if you are interested in ADA Tips and information on how to be compliant, I would invite you to go one of these links:

Accessible Accommodation Tips
Future ADA Seminars
Guest Articles

Otherwise you’re reading this column about awareness. And there’s much to be aware of and comply with.

The POINT of ADA COMPLIANCE is to provide equal access.  What’s on this blog is just the tip of the proverbial ice berg.

I do intend to keep posting more detailed information.  But to get started, we need some background.

For instance, suing places for their lack of physical ADA compliance is just a tip of the issue.

I’m not going to list all of the possible issues right now, but as a business becomes physically compliant, they still need to audit their own services in other to understand how they are not compliant in other ways.

For example, Senate Bill 3304 was passed last year in 2010.  You can take a look at the details here: Senate Bill 3304.  This bill highlights the need for communication to be provided for people with disabilities.  In other words, if you communicate anything to the public you’re probably assuming that they fit a certain mold, of being a certain age, speaking or reading a certain level of English comprehension… and are not either hearing or sight impaired.

Well, that’s changed.  Senate Bill 3304 is otherwise called 21st Century Communications and Video Accessibility Act, “COAT” has a long list of areas that need to be both closed captioned or available on hearing-impaired or seeing-impaired devices.  I have quoted the entire list of the different sections for you below.

Title I – Communications Access

Section 101:  Definitions.

  • Provides definitions for “advanced communications” (including interconnected and non-interconnected voice over Internet protocol (VoIP), electronic messaging, and interoperable video conferencing services); “consumer-generated media”; and “disability.”

Section 102:  Hearing aid compatibility.

  • Requires telephones used with the Internet to be hearing aid compatible.

Section 103:  Relay services.

  • Permits use of relay services to enable communication with anyone, not just between people with and without disabilities.  So, for example, a TTY user can use relay services to call a person who communicates in American Sign Language using a videophone.
  • Requires Internet-based voice communication service providers to contribute to the Interstate Relay Service Fund.

Section 104:  Access to advanced communications services and equipment.

  • Requires accessible advanced communications equipment and services, if achievable; and, if not achievable, then to make equipment and services compatible with devices commonly used by individuals with disabilities to achieve access, if achievable.
  • Requires access to Internet services built-in to mobile telephone devices, like smart phones, if achievable.
  • Defines “achievable” as reasonable effort or expense, as determined by the FCC.
  • Improves enforcement; requires regular reports by the FCC to Congress; and requires an enforcement study by the Comptroller General.
  • Adds recordkeeping obligations for equipment manufacturers and service providers.
  • Requires a clearinghouse of information on accessible products and services, and public education and outreach.

Section 105:  Relay Services for Deaf-Blind Individuals.

  • Allocates up to $10 million per year from the Interstate Relay Service Fund for equipment used by individuals who are deaf-blind.

Section 106:  Emergency Access Advisory Committee

  • Establishes an Emergency Access Advisory Committee to recommend and for the FCC to adopt rules to achieve reliable and interoperable communications with future Internet-enabled emergency call centers.

Title II – Video Programming

Section 201:  Video Programming and Emergency Access Advisory Committee.

  • Establishes a Video Programming and Emergency Access Advisory Committee to make recommendations about closed captioning, video description, accessible emergency information, user interfaces, and video programming guides and menus.

Section 202:  Video description and closed captioning.

Video Description

  • After 1 year, restores FCC rules requiring 4 hours per week of video description on 9 television channels (top 4 broadcast networks and top 5 cable channels) in the top 25 most populated markets.
  • After 2 years, requires FCC to report to Congress on video description.
  • After 4 years, permits the FCC to increase video description to 7 hours per week on 9 television channels.
  • After 6 years, requires the FCC to apply the video description requirements to the top 60 most populated markets (not just the top 25 most populated markets).
  • After 9 years, requires the FCC to report to Congress on the need for additional markets to carry video description.
  • After 10 years, permits the FCC to expand video description to 10 new markets annually to achieve 100 percent nationwide coverage.

Emergency Information

  • Requires video programming owners, providers, and distributors to make emergency information accessible to individuals who are blind or have low vision.

Closed Captioning

  • Requires captioned television programs to be captioned when delivered over the Internet.
  • Requires the FCC to grant or deny requests for exemption from the closed captioning rules within 12 months.

Section 203:  Closed captioning decoder and video description capability.

  • Requires devices designed to receive or play back video programming, using a picture screen of any size, to be capable of displaying closed captioning, delivering available video description, and making emergency information accessible to individuals who are blind or have low vision, except, devices with picture screens less than 13” must meet these requirements if achievable with reasonable effort or expense.
  • Requires devices designed to record video programming (such as DVRs) to enable the rendering or pass through of closed captions, video description, and emergency information, so viewers can turn the closed captions and video description on/off when played back on a screen of any size.

Section 204:  User interfaces on digital apparatus.

  • Requires devices designed to receive or play back video programming:
  1. to make controls of built-in functions accessible to and usable by individuals who are blind or have low vision, if achievable;
  2. to make controls of built-in functions accessible to and usable by individuals who are blind or have low vision through audio output;
  3. to provide access to built-in closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features.

Section 205:  Access to video programming guides and menus provided on navigation devices.

  • Requires cable/satellite set-top box on-screen text menus and guides to be audibly accessible to individuals who are blind or have low vision, if achievable.
  • To provide access to built-in closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features.

Section 206:  Definitions.

  • Provides definitions for Advisory Committee, Chairman, Commission, emergency information, Internet protocol, navigation device, video description, and video programming.

In looking ahead, you can see that the future requirements are going to catch many many many businesses off guard.  It might be a few years before those businesses themselves get sued.  And then the need and demand for these communication devices, (be it mobile hearing aids, readers, screens, and so on) will go up.  Although right now many businesses probably don’t care, thinking such a cost extraneous.

You can see this original page here: COAT page on S. 3304.  Their page is a great resource on what some of these devices will be.

Some of the issues about disabled communication have already caught on.  I link two of them below.


More ADA Compliance issues (non-physical access)

Issue #1:  Vegas Airport SUED for their Kiosks

So you’d think large companies with their “Chief Compliance Officers” and their vast resources would be able to catch on and anticipate their customers’ needs and avoid lawsuits by now.

This isn’t the case.

In this article, you can read about how a Baltimore based Blind Group Sued the Las Vegas Airport over their Ticket Kiosks.  (from The Daily Record)

The point is that this airport offered ticket kiosks to their customers as a service so that their customers could get their tickets self-check in and be on their way quicker.  By not upgrading the software on the kiosks so as to include some kind of voice-communication, they were denying this service to the blind.

In the article, upgrading the kiosks could be somewhere between 2k- 30k each.

As an airport, their income is well into the millions, so this represents only a fraction of their budget.  You can be sure you’ll need to do that now, otherwise it could (and will) happen again.


Issue #2 FedEx Field SUED for not providing Closed Captioning for Music

Most business owners hearing this would probably think this is a ridiculous issue.  But if you read the article, you’ll see that this football field had been previously sued for not including closed captioning on their screens back in 2003.  Their protest was that closed captioning  “would take up too much room on the screen” — which of course betrays their insensitivity and bias against those who do need it, lest they know not what’s going on.

So, seven years later and having installed the necessary equipment, you’d think the field would have learned their lesson.

What’s interesting about this case is that both sides are claiming that they are willing to cooperate but the other side was being difficult.  I quote the end of the article below so you can decide for yourself.

The court also agreed that song lyrics were an important part of the football experience, even though the plaintiffs had waited to raise that argument until filing summary judgment papers.

“By having access to the lyrics, plaintiffs have the opportunity to participate in the communal entertainment experience,” the court said in a 2-1 decision. “Without access to lyrics played, for example, during cheerleader dance routines and the halftime show, plaintiffs would not fully and equally experience the planned and synchronized promotional entertainment that large stadiums like FedEx Field provide.”

Washington Redskins General Counsel Dave Donovan said that his clients and the stadium owners already were complying with the decision. He said that they were providing, through e-mails, typed lyrics to songs performed by the cheerleaders. “Truth be told, this has only been about attorney’s fees. For years the plaintiffs’ firms managed to keep it alive,” Donovan said.

Joseph Espo, who represented the plaintiffs, said that his clients had tried to settle the case many times and that the attorney fees, which were in the “low six figures,” were a result of the defendants’ unwillingess to settle.

“It completely distorts reality to say that we are the ones who drove the fees,” Espo said. “The decision is a great day for deaf sports fans and reaffirms the obligation of the owners and operators of sports venues to make sure their product is accessible to all of their customers.”

Contact Leigh Jones at ljones@alm.com.

You can read more about how FedEx Field dealt with this lawsuit.  (From National Law Journal.)

Both articles underscores the need for places of public accommodation to understand their role in providing a consistency of availability to each and every of their customers to the best of their ability.

If you expect to take people’s money and provide them with an experience, a good or a service, you must best do your best to provide everyone equal access.


The ADA Compliance Takeaway

At this point, you should begin to understand what ‘accessiblity’ means.

This is a far cry from the standard ‘I can fit a wheelchair through my door therefore I am ADA compliant’.

ADA Compliance means that you’ve taken the time and effort to consider and provide equal access to each customer who comes through your door.  ADA Compliance means taking the time and money to hire ADA Experts and implemented the changes they’ve recommended, not just in terms of your physical site, but also how you do business and communicate with your customers.

You can start by checking out the California Relay Service so you can at least talk to customers on the phone whom you may have trouble understanding.  It’s a free service by the state of California available to have a communication assistant coordinate from text to speech, speech to speech, speech to text, and so on.  Please take a look, and train your receptionist on it too!

For additional questions and comments, you can email me at help@accesssolutionllc.com or call 866 982 3212.

Questions and Answers on the Expanded 2008 Definitions of “What is a Disability”

The US Equal Employment Opportunity Commission has published a Q&A on what a Disability is.  This addresses the 2008 Amendment of the ADA that President Obama signed into law on the celebration of 20 years of the ADA.

Disabilities is of interest to us because under the ADA, individuals with disabilities need to be accommodated.   How that happens at the physical site is what we as ADA consultants help businesses with.

Yet once in a while we get a question from the audience at a seminar or in email as to ‘what is a disability’ – so I decided to post a resource here for you all.

This definition comes from the Federal Government and it applies mostly to Title 1 of the ADA which has to do with employment, but it does affect which members of the public fall under the ADA requirements for accommodation.  For employment issues, please consult an expert on HR issues (which we are not).  California does have their own standards which are much less strict but the online resource for this is fairly poor.  I have linked it here:  http://www.dir.ca.gov/dlse/ada/ada_faq.html and here: http://www.disabilityaccessinfo.ca.gov/lawsregs.htm.  Some of this repeats what we’ve linked elsewhere, but like I said, California doesn’t have a page like this one from EEOC.

The ADA Accommodation interpretation from the Federal Government is quoted below.

Found here:

Final Ruling on the ADA with the 2008 Amendments


A summary of the legal principles can be gleamed here:

Federal Definition of Disability


But the text from the EEOC is quoted entirely below for your benefit:


The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009. This law made a number of significant changes to the definition of “disability.” It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations were published in the Federal Register on March 25, 2011.

The EEOC is making changes to both the Title I ADA regulations and to the Interpretive Guidance (also known as the Appendix) that was published with the original ADA regulations. The Appendix provides further explanation on how the regulations should be interpreted.

The questions and answers below provide information on the changes made to the regulations as a result of the ADAAA and identify certain regulations that remain the same. The answers below also note where the final regulations differ from what appeared in the Notice of Proposed Rulemaking (NPRM) that was published September 23, 2009. Finally, answers to certain questions provide citations to specific sections of the final regulations and the corresponding section of the Appendix (29 C.F.R. section 1630).

1. Does the ADAAA apply to discriminatory acts that occurred prior to January 1, 2009?

No. The ADAAA does not apply retroactively. For example, the ADAAA would not apply to a situation in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability in December 2008, even if the person did not file a charge with the EEOC until after January 1, 2009. The original ADA definition of disability would be applied to such a charge. However, the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009.

2. What is the purpose of the ADAAA?

Among the purposes of the ADAAA is the reinstatement of a “broad scope of protection” by expanding the definition of the term “disability.” Congress found that persons with many types of impairments – including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder – had been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.” Yet, Congress thought that individuals with these and other impairments should be covered. The ADAAA explicitly rejected certain Supreme Court interpretations of the term “disability” and a portion of the EEOC regulations that it found had inappropriately narrowed the definition of disability. As a result of the ADAAA and EEOC’s final regulations, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of “disability.” As a result, many more ADA claims will focus on the merits of the case.

3. Do all of the changes in the ADAAA apply to other titles of the ADA and provisions of the Rehabilitation Act prohibiting disability discrimination by federal agencies, federal contractors, and recipients of federal financial assistance?

Yes. The ADAAA specifically states that all of its changes also apply to:

  • section 501 of the Rehabilitation Act (federal employment),
  • section 503 of the Rehabilitation Act (federal contractors), and
  • section 504 of the Rehabilitation Act (recipients of federal financial assistance and services and programs of federal agencies).

The changes to the definition of disability also apply to all of the ADA’s titles, including Title II (programs and activities of State and local government entities) and Title III (private entities that are considered places of public accommodation). A few provisions of the ADAAA affect only the portions of the ADA and the Rehabilitation Act concerning employment, such as a provision that requires covered entities to show that qualification standards that screen out individuals based on uncorrected vision are job-related and consistent with business necessity, and changes to the general prohibition of discrimination in § 102 of the ADA.

The EEOC’s final regulations apply to Title I of the ADA and section 501 of the Rehabilitation Act, but they do not apply to Titles II and III of the ADA, or sections 503 and 504 of the Rehabilitation Act.

4. Who is required to comply with these regulations?

These regulations apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations (unions), and joint labor-management committees. [Section 1630.2(b)] Additionally, section 501 of the Rehabilitation Act applies to federal executive branch agencies regardless of the number of employees they have. The use of the term “covered entity” in this Q&A and the Appendix refers to all such entities.

5. How does the ADAAA define “disability?”

The ADAAA and the final regulations define a disability using a three-pronged approach:

  • a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”), or
  • a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
  • when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”). [Section 1630.2(g)]

6. Must individuals use a particular prong of the definition of disability when challenging a covered entity’s actions?

Not necessarily. Claims for denial of reasonable accommodation must be brought under one or both of the first two prongs of the definition of disability ( i.e., an actual disability and/or a record of a disability) since the ADAAA specifically states that those covered under only the “regarded as” definition are not entitled to reasonable accommodation. While other types of allegations ( e.g., failure to hire or promote, termination, harassment) may be brought under any of the definitions, an individual may find it easier to claim coverage under the “regarded as” definition of disability. An individual only has to meet one of the three prongs of the definition of “disability.” [Section 1630.2(g)(3) and Appendix Section 1630.2(g)]

7. How do the regulations define the term “physical or mental impairment”?

The regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. [Section 1630.2(h)]

The definition of “impairment” in the new regulations is almost identical to the definition in EEOC’s original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’s examples of major bodily functions. (See Question 8.)

8. What are “major life activities?”

The final regulations provide a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Most of these examples are taken from the ADAAA, which in turn adopted them from the original ADA regulations and EEOC guidances, or from ADA and Rehabilitation Act case law.

The final regulations also state that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Although not specifically stated in the NPRM, the final regulations state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas).

As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability. (For examples of impairments affecting major bodily functions that should easily be concluded to meet the first or second part of the definition of “disability,” see Question 19.)

9. When does an impairment “substantially limit” a major life activity?

To have an “actual” disability (or to have a “record of” a disability) an individual must be (or have been) substantially limited in performing a major life activity as compared to most people in the general population. Consistent with the ADAAA, the final regulations adopt “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction include the following:

  • An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
  • The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
  • In keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
  • Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.
  • An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”

Other rules of construction are discussed in more detail in Questions 10-17. [Section 1630.2(j)(1)(i-v) and (viii)]

10. Do the final regulations require that an impairment last a particular length of time to be considered substantially limiting?

No. As discussed in Question 25, the ADAAA excludes from “regarded as” coverage an actual or perceived impairment that is both transitory ( i.e., will last fewer than six months) and minor. However, neither the ADAAA nor the final regulations apply this exception found in the “regarded as” definition of disability to the other two definitions of disability. One of the “rules of construction” states that the effects of an impairment lasting fewer than six months can be substantially limiting. [Section 1630.2(j)(1)(ix)]

11. Can impairments that are episodic or in remission be considered disabilities?

Yes. The ADAAA and the final regulations specifically state that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. This means that chronic impairments with symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms or effects would only substantially limit a major life activity when the impairment is active. The Appendix provides examples of impairments that may be episodic, including epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but that may possibly return in a substantially limiting form will also be a disability under the ADAAA and the final regulations. [Section 1630.2(j)(1)(vii) and corresponding Appendix section]

12. What are mitigating measures?

Mitigating measures eliminate or reduce the symptoms or impact of an impairment. The ADAAA and the final regulations provide a non-exhaustive list of examples of mitigating measures. They include medication, medical equipment and devices, prosthetic limbs, low vision devices ( e.g., devices that magnify a visual image), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, and learned behavioral or adaptive neurological modifications. In addition, the final regulations add psychotherapy, behavioral therapy, and physical therapy to the ADAAA’s list of examples. [Section 1630.2(j)(5)]

13. May the positive effects of mitigating measures in limiting the impact of an impairment on performance of a major life activity be considered when determining whether someone has a disability?

No, except for ordinary eyeglasses or contact lenses (see Question 14). The ADAAA and the final regulations direct that the positive (or ameliorative) effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, if a mitigating measure eliminates or reduces the symptoms or impact of an impairment, that fact cannot be used in determining if a person meets the definition of disability. Instead, the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. This may mean focusing on the extent of limitations prior to use of a mitigating measure or on what would happen if the individual ceased using a mitigating measure. [Section 1630.2(j)(1)(vi) and corresponding Appendix section]

14. Does the rule concerning mitigating measures apply to people whose vision is corrected with ordinary eyeglasses or contact lenses?

No. “Ordinary eyeglasses or contact lenses” – defined in the ADAAA and the final regulations as lenses that are “intended to fully correct visual acuity or to eliminate refractive error” – must be considered when determining whether someone has a disability. For example, a person who wears ordinary eyeglasses for a routine vision impairment is not, for that reason, a person with a disability under the ADA. The regulations do not establish a specific level of visual acuity for determining whether eyeglasses or contact lenses should be considered “ordinary.” This determination should be made on a case-by-case basis in light of current and objective medical evidence. [Sections 1630.2(j)(1)(vi) and (j)(6) and corresponding Appendix sections]

15. May the negative effects of a mitigating measure be taken into account in determining whether an individual meets the definition of “disability?”

Yes. The ADAAA allows consideration of the negative effects of a mitigating measure in determining if a disability exists. For example, the side effects that an individual experiences from use of medication for hypertension may be considered in determining whether the individual is substantially limited in a major life activity. However, it will often be unnecessary to consider the non-ameliorative effects of mitigating measures in order to determine whether an individual has a disability. For example, it is unnecessary to consider the burdens associated with receiving dialysis treatment for someone whose kidney function would be substantially limited without this treatment. [Section 1630.2(j)(4)(ii)]

16. May the positive or negative effects of mitigating measures be considered when assessing whether someone is entitled to reasonable accommodation or poses a direct threat?

Yes. The ADAAA’s prohibition on assessing the positive effects of mitigating measures applies only to the determination of whether an individual meets the definition of “disability.” All other determinations – including the need for a reasonable accommodation and whether an individual poses a direct threat – can take into account both the positive and negative effects of a mitigating measure. The negative effects of mitigating measures may include side effects or burdens that using a mitigating measure might impose. For example, someone with diabetes may need breaks to take insulin and monitor blood sugar levels, and someone with kidney disease may need a modified work schedule to receive dialysis treatments. On the other hand, if an individual with a disability uses a mitigating measure that results in no negative effects and eliminates the need for a reasonable accommodation, a covered entity will have no obligation to provide one.

17. Can a covered entity require that an individual use a mitigating measure?

No. A covered entity cannot require an individual to use a mitigating measure. However, failure to use a mitigating measure may affect whether an individual is qualified for a particular job or poses a direct threat. [Appendix Section 1630.2(j)(1)(vi)]

18. After an individualized assessment is done, are there certain impairments that will virtually always be found to result in substantial limitation in performing certain major life activities?

Yes. Certain impairments, due to their inherent nature and the extensive changes Congress made to the definitions of “major life activities” and “substantially limits,” will virtually always be disabilities. (See Questions 8-11 and 13.) For these impairments, the individualized assessment should be particularly simple and straightforward.

19. Do the regulations give any examples of specific impairments that will be easily concluded to substantially limit a major life activity?

Yes. The regulations identify examples of specific impairments that should easily be concluded to be disabilities and examples of major life activities (including major bodily functions) that the impairments substantially limit. The impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. [Section 1630.2(j)(3)]

20. May the condition, manner, or duration under which a major life activity can be performed be considered in determining whether an impairment is a disability?

Yes. The Commission did not include the concepts of “condition, manner, or duration” (used in the original ADA regulations published in 1991) in the NPRM, believing that use of the terms might lead to the kind of excessive focus on the definition of “disability” that Congress sought to avoid. In response to comments on behalf of both employers and individuals with disabilities, however, we have included the concepts of condition, manner, or duration (where duration refers to the length of time it takes to perform a major life activity or the amount of time the activity can be performed) in the final regulations as facts that may be considered if relevant. But, with respect to many impairments, including those that should easily be concluded to be disabilities (see Question 19), it may be unnecessary to use these concepts to determine whether the impairment substantially limits a major life activity.

Assessing the condition, manner, or duration under which a major life activity can be performed may include consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function. [Section 1630.2(j)(4)(i) and (ii) and corresponding Appendix section]

21. When is someone substantially limited in the major life activity of working?

In certain situations, an impairment may limit someone’s ability to perform some aspect of his or her job, but otherwise not substantially limit any other major life activity. In these situations, the individual may be substantially limited in working. However, with all of the changes made by the ADAAA, in particular the inclusion of major bodily functions as major life activities and revisions to the “regarded as” prong of the definition of “disability,” it should generally be unnecessary to determine whether someone is substantially limited in working. [Appendix Section 1630.2(j)]

The final regulations, unlike the NPRM, do not mention the major life activity of working other than by its inclusion in the list of major life activities (see Question 8). However, the Appendix discusses how to determine substantial limitation in a number of major life activities, including working. The Appendix discussion of working, unlike the NPRM, states that substantial limitation in this major life activity will be made with reference to difficulty performing either a “class or broad range of jobs in various classes” rather than a “type of work.” The Appendix also notes that a “class” of work may be determined by reference to the nature of the work ( e.g., commercial truck driving or assembly line jobs), or by reference to job-related requirements that an individual is limited in meeting ( e.g., jobs requiring extensive walking, prolonged standing, and repetitive or heavy lifting). Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.

22. Does the ADA still exclude from coverage a person who is illegally using drugs?

Yes. The ADAAA did not make changes to the part of the ADA that excludes from coverage a person who currently engages in the illegal use of drugs when a covered entity acts on the basis of such use. However, the ADA also still says that a person who no longer engages in the illegal use of drugs may be an individual with a disability if he or she:

  • has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully, or
  • is participating in a supervised rehabilitation program ( e.g., Alcoholics Anonymous or Narcotics Anonymous). [Section 1630.3(a)-(b)]

23. Is pregnancy a disability under the ADAAA?

No. Pregnancy is not an impairment and therefore cannot be a disability. Certain impairments resulting from pregnancy ( e.g., gestational diabetes), however, may be considered a disability if they substantially limit a major life activity, or if they meet one of the other two definitions of disability discussed below. [Appendix Section 1630.2(h)]

24. When does an individual have a “record of” a disability?

An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of “disability.” An individual also can meet the “record of” definition of disability if she was once misclassified as having a substantially limiting impairment ( e.g., someone erroneously deemed to have had a learning disability but who did not).

All of the changes to the first definition of disability discussed in the questions above – including the expanded list of major life activities, the lower threshold for finding a substantial limitation, the clarification that episodic impairments or those in remission may be disabilities, and the requirement to disregard the positive effects of mitigating measures – will apply to evaluating whether an individual meets the “record of” definition of disability. [Section 1630.2(k) and corresponding Appendix section]

25. What does it mean for a covered entity to “regard” an individual as having a disability?

Under the ADAAA and the final regulations, a covered entity “regards” an individual as having a disability if it takes an action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment the covered entity believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. This new formulation of “regarded as” having a disability is different from the original ADA formulation, which required an individual seeking coverage under this part of the definition to show that a covered entity believed the individual’s impairment (or perceived impairment) substantially limited performance of a major life activity. [Section 1630.2(l)(1)]

A covered entity will regard an individual as having a disability any time it takes a prohibited action against the individual because of an actual or perceived impairment, regardless of whether the covered entity asserts, or even ultimately establishes, a defense for its action. As discussed in Question 26, the legality of the covered entity’s actions is a separate inquiry into the merits of the claim. [Section 1630.2(l)(2)]

The final regulations state that a covered entity may challenge a claim under the “regarded as” prong by showing that the impairment in question, whether actual or perceived, is both transitory and minor. In other words, whether the impairment in question is transitory and minor is a defense available to covered entities. However, a covered entity may not defeat a claim by asserting it believed an impairment was transitory and minor when objectively this is not the case. For example, an employer that fires an employee because he has bipolar disorder, or an employment agency that refuses to refer an applicant because he has bipolar disorder, cannot assert that it believed the impairment was transitory and minor because bipolar disorder is not objectively transitory and minor. [Section 1630.15(f) and corresponding Appendix section]

26. If a covered entity regards an individual as having a disability, does that automatically mean the covered entity has discriminated against the individual?

No. The fact that a covered entity’s action may have been based on an impairment does not necessarily mean that a covered entity engaged in unlawful discrimination. For example, an individual still needs to be qualified for the job he or she holds or desires. Additionally, in some instances, a covered entity may have a defense to an action taken on the basis of an impairment, such as where a particular individual would pose a direct threat or where the covered entity’s action was required by another federal law ( e.g., a law that prohibits individuals with certain impairments from holding certain kinds of jobs). As under current law, a covered entity will be held liable only when an individual proves that the entity engaged in unlawful discrimination under the ADA. [Sections 1630.2(l)(3) and 1630.2(o)(4), and Appendix Sections 1630.2(l) and (o)]

27. Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation?

Yes. Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation. Of course, coverage under the “actual” or “record of” definitions does not, alone, entitle a person to a reasonable accommodation. An individual must be able to show that the disability, or past disability, requires a reasonable accommodation. [Sections 1630.2(k)(3), 1630.2(o)(4), 1630.9(e)]

28. What do the final regulations say about qualification standards based on uncorrected vision?

The ADAAA and the final regulations require that a covered entity show that a challenged qualification standard based on uncorrected vision is job-related and consistent with business necessity. An individual challenging the legality of an uncorrected vision standard need not be a person with a disability, but the individual must have been adversely affected by the standard. The Appendix notes that individuals who are screened out of a job because they cannot meet an uncorrected vision standard will usually meet the “regarded as” definition of disability. [Section 1630.10(b) and corresponding Appendix section]

29. Does the ADAAA change the definitions of “qualified,” “direct threat,” “reasonable accommodation,” and “undue hardship,” or does it change who has the burden of proof in demonstrating any of these requirements?

No. Nearly all of the ADAAA’s changes only affect the definition of “disability.” None of the key ADA terms listed in this Question, or the burdens of proof applicable to each one, have changed. The only provision in the ADAAA affecting the reasonable accommodation obligation is that a covered entity does not have to provide one to an individual who only meets the “regarded as” definition of disability.

30. Why do the regulations no longer refer to a “qualified individual with a disability”?

Consistent with the ADAAA, the final regulations now refer to “individual with a disability” and “qualified individual” as separate terms. They also now prohibit discrimination “on the basis of disability” rather than “against a qualified individual with a disability because of the disability of such individual.” The changes to the regulations reflect changes made by the ADAAA itself, which are intended to make the primary focus of an ADA inquiry whether discrimination occurred, not whether an individual meets the definition of “disability.” However, an individual must still establish that he or she is qualified for the job in question. [Section 1630.4 and the Introduction to the Appendix]

31. Do any of the ADAAA’s changes affect workers’ compensation laws or Federal and State disability benefit programs?

No. The ADAAA and the final regulations specifically state that no changes alter the standards for determining eligibility for benefits under State workers’ compensation laws or under Federal and State disability benefit programs. [Section 1630.1(c)(3) and corresponding Appendix section]

32. May a non-disabled individual bring an ADA claim of discrimination for being denied an employment opportunity or a reasonable accommodation because of lack of a disability?

No. The ADA does not protect an individual who is denied an employment opportunity or a reasonable accommodation because she does not have a disability. [Section 1630.4(b) and corresponding Appendix section]

33. Will the EEOC be updating all of the ADA-related publications on its website to be consistent with the final ADAAA regulations?

Yes. When EEOC updates a particular document, we will note this on our website and explain what changes were made to the document. To avoid misunderstanding, all of these documents currently contain notices about the ADAAA indicating that some of the material in the documents may no longer reflect the law. It should be noted that because the ADAAA focused almost exclusively on changing the definition of “disability,” content in these documents unrelated to the definition of “disability” – including the meaning of qualified, essential functions, reasonable accommodation, and direct threat – remains unaffected by the ADAAA and the final regulations. Therefore, individuals can continue to rely on these parts of the documents as reflecting current law.

Further contact information for the EEOC can be obtained below.

For more information about the ADA, please visit our website or call our toll-free number.

EEOC website: www.eeoc.gov
800-669-4000 (Voice) and 800-669-6820 (TTY)
All calls are confidential.

For more information about reasonable accommodations, contact the Job Accommodation Network. JAN provides free, expert, and confidential guidance on workplace accommodations.

JAN website: www.askjan.org
800-526-7234 (Voice) and 877-781-9403 (TTY)

If you have questions for us on ADA compliance, email me at help@accesssolutionllc.com or call 866 982 3212.

ADA Lawsuits prompt a Grace Period Bill in Congress

The majority of lawsuits arising from ADA violations are aimed at smaller businesses.  Many of those lawsuits hurt businesses as the steep cost of defending those lawsuits for violations (which most likely are, strictly speaking, in fact violations) prompt potentially large settlements.  These settlements are usually at least $4,000.00 + attorneys fees.

Well, now there’s a new bill aimed at helping those small businesses.  This bills hopes to deter serial litigants from threatening small businesses for items which are readily achievable.  Will this bill pass? It’s labled H.R. 881.

March 7, 2011 (San Diego’s East County) — Congressman Duncan Hunter (R-El Cajon) recently introduced legislation aimed at curtailing what he views as frivolous lawsuits against small businesses that are allegedly in violation of the Americans with Disabilities Act (ADA). The bill, entitled the ADA Notification Act, would provide businesses accused of an ADA violation with a 90-day grace period to make necessary modifications.

“It’s bad enough that small businesses are facing enormous challenges due to the current economic downturn,” Rep. Hunter said in a press release. “What they don’t need to contend with are any other unnecessary obstacles that impede growth and competitiveness. But that’s exactly what’s happening in San Diego with predatory ADA lawsuits.”

Our thoughts on this proposed legislation is that yes, businesses should become compliant, they should at least fix the items which are readily achievable (which is a classification of items relatively inexpensive to fix — and also the class of ADA violations which are in fact the most sued over) and yes, businesses should absolutely understand what laws effect their bottom line.

But rather than introducing more government oversight and legislation, the key to compliance should be EDUCATION not legislation.

Will this 90 day grace period prompt a business to fix the items in question properly?

Will a 90 day grace period be long enough for a business to find, qualify and hire a contractor to properly install items like grab bars, signage, restroom amenities and parking striping?

The area of law surrounding the ADA have multiple requirements. It’s possible that hiring any contractor will not only the business MORE LIABLE but also leave the contractor liable as well.

That would be a disastrous waste of resources and funds!

Yes, it’s as I’ve been writing all along. Education and then proper action towards ADA COMPLIANCE is the only way to avoid lawsuits.

If you have any questions about the particulars of YOUR ADA COMPLIANCE best email us at help@accesssolutionllc.com or call 866 982 3212.

You can read more about this by clicking the link below.
Read from East County via Overlawyered.Com and CJAC.

Justice Department’s New ADA Rules Go into Effect on March 15, 2011

This following is quoted from the Department of Justice in Full from here:


Department of Justice

Office of Public Affairs
Monday, March 14, 2011
Justice Department’s New ADA Rules Go into Effect on March 15, 2011

WASHINGTON – Revised regulations implementing the Americans with Disabilities Act (ADA) will take effect tomorrow, March 15, 2011, the Department of Justice announced.   The revised rules are the department’s first major revision of its guidance on accessibility in 20 years.


The regulations apply to the activities of more than 80,000 units of state and local government and more than seven million places of public accommodation, including stores, restaurants, shopping malls, libraries, museums, sporting arenas, movie theaters, doctors’ and dentists’ offices, hotels, jails and prisons, polling places, and emergency preparedness shelters.   The rules were signed by Attorney General Eric Holder on July 23, 2010, and the official text was published in the Federal Register on September 15, 2010.


The department is also releasing a new document, “ADA Update: A Primer for Small Business,” to help small businesses understand the new and updated accessibility requirements.   In addition, the department is announcing the release of a new publication explaining when the various provisions of its amended regulations will take effect.   Both documents will be available tomorrow on the department’s ADA website, www.ada.gov .


“The new rules usher in a new day for the more than 50 million individuals with disabilities in this country,” said Thomas E. Perez, Assistant Attorney General for Civil Rights.   “The rules will expand accessibility in a number of areas and, for the first time, provide detailed guidance on how to make recreation facilities, including parks and swimming pools, accessible.”


The new ADA rules adopt the 2010 ADA Standards for Accessible Design, which have been retooled to be more user-friendly for building code officials, builders, and architects, and have been harmonized with state and local accessibility codes.   The 2010 standards also include, for the first time, standards on making swimming pools, parks, golf courses, boating facilities, exercise clubs, and other recreation facilities accessible for individuals with disabilities. Entities covered by the ADA have until March 15, 2012 to comply with the 2010 Standards.   In addition to adopting the new ADA 2010 Standards, the amended regulations contain many new or expanded provisions on general nondiscrimination policies, including the use of service animals, the use of wheelchairs and other power-driven mobility devices, selling tickets for wheelchair-accessible seating at sports and performance venues, reserving and guaranteeing accessible rooms at hotels, providing interpreter services through video conferencing, and the effect of the new regulations on existing facilities.   The compliance date for the all the new nondiscrimination provisions, except for those on hotel reservations, is March 15, 2011.   Compliance with the hotel reservation provisions is not required until March 15, 2012.


“ADA Update” and “ADA 2010 Revised Requirements: Effective Date/Compliance Date” are the first of several planned publications aimed at helping businesses, not-for-profit organizations, and state and local governments understand their obligations under the amended Title II and Title III regulations.   Individual print copies of the Effective Date/Compliance Date publication can be ordered from the ADA Information Line (800-514-0301 voice or 800-514-0383 TTY).


For more information about the ADA , call the Justice Department’s toll-free ADA Information Line at 800-514-0301 or 800-514-0383 (TTY), or access the department’s ADA website at www.ada.gov .


How it effects you:

This deadline basically means that the additional requirements for ADA compliance extend into areas that were previously unregulated.

The DOJ intends to publish a small business guide tomorrow, so we will be posting that.  Further information will be available as events unravel.

We keep abreast of this stuff so you don’t have to!

For more information pertinent to Accessibility and the new ADA requirements today, you can look at the resources below:


As always, call us if you have any questions or concerns about accessibility at 866 982 3212 x1 or email us at help@accesssolutionllc.com

ADA Compliance Options: Why CASp?

For those of you who don’t know, CASp stands for Certified Access Specialist. The short version of this history is that the California Senate passed a bill, SB 1608, which altered the nature of ADA compliance requirements for businesses.  This was an ambitious bill, pushed forward mainly by the California Chamber of Commerce.  SB 1608 has far reaching effects.  This article discusses some of the benefits of SB 1608 weighed against some of the added liabilities for business owners.

If you want a more detailed history of SB 1608, you can go to the California Chamber of Commerce ADA Reform page.  We’ve extracted some of the key points from their website, as they are quite broad of this lobbying effort.

I assume that you’re a business owner.  If you aren’t, then you’re probably either an attorney, a contractor or an architect (or an activist).  Either way, you’re interested in how SB 1608 impacts businesses, places of public accommodation as defined under Title 3 of the ADA.


Let’s start with the liabilities.  Understanding the benefits are less meaningful if you don’t know the liabilities.

I assume you’re already familiar with the responsibilities of ADA Compliance at your place of business. Basically, your business must work towards becoming 100% ADA Compliant.  There are a few things to consider in the course of this, like what kind of ADA inspection do you want to get, or when you will fix certain items.  Otherwise, the liabilities listed here are what CASp adds to your responsibility.  It’s important to note that ADA inspections are only the first step towards ADA Compliance.  An inspection, not even a CASp inpsection by itself, does ANYTHING to subtract from your duties to comply with the law.  What a complete ADA inspection does, is demonstrate good faith effort.  Inspections also are useful for contractors and architects who are not generally well versed in ADA compliance.


Liabilities of CASp Inspections

CASp and SB 1608 was passed only to protect businesses interested in ADA Compliance.  There are two main considerations.

1. A CASp inspection requires that a timeline be implemented as to when items are to be made in compliance.  There are no standard guidelines for how to assess this — as such a timeline is largely dependent on the financial resources of the entity in question.  This means that any CASp inspector needs to work with the entity in determining an accurate guide as to when items should be fixed.

If the timeline is too strict, the entity may fall behind fixing these items and in the case of an ADA lawsuit, the entity will look faulty.

If the timeline is too lax, in the case of an ADA lawsuit, the entity could have fixed certain times and remained needlessly liable for that time.

Remember the point of CASp is to become ADA compliant.  If you get a CASp Report and then do nothing, you will become more liable over time.  If you display the CASp certification, considering no one else has one, you’ll probably deter ADA lawsuits for a time.  After a time, having the CASp certification with obvious ADA violations will get you sued.  Then you’ll look extremely worse in court for not complying at all.

2.  CASp can be quite expensive, because of the added liabilities to the CASp Inspector in determining the timeline.  The average cost of CASp is $2400.

3. This is not a liability, but it is worth mentioning:  CASp goes into effect only if the site is sued AFTER getting a CASp inspection.  No protection is offered retroactively.

4. A CASp licensed individual is required to be included in building departments.  The original time line stated that such an individual was to be included as of July in 2010, but this date has been moved into 2014.  CASp is meant to bridge State Building Code and ADA guidelines, as most contractors and architects are not well versed in Federal Civil Code.  While having a CASp individual does not offer a significant benefit, as local ordnances only have jurisdiction over State law, not Federal Civil Law.  A CASp individual in the local building department is a resource to local businesses but as a state employee such an individual is limited to advising about the State regulations.  If you want the benefits of CASp, you’d still have to hire them outside of their normal building department job and pay them the required amount.


Advantages of CASp

The California Chamber of Commerce has listed 10 benefits of SB 1608 for businesses.  We have divided these benefits into two groups, for those who get CASp and everyone else.  This is the first section.

1.  Part of the fear of ADA compliance is the cost.  CASp helps a business focus on what they can pay for.  Remember, the timeline is there to help businesses comply within a reasonable time frame.  If a CASp inspector understands approximately how much a business can afford for ADA compliance per month, the cost of compliance can be spread out over time to achieve 100% ADA Compliance.

2.  CASp certification is offered for all sites, even if they are not yet compliant.  This certification can be posted on a store window to deter litigants looking for an easy target.

3. CASp tries to help businesses avoid expensive lawsuits.  To this end, CASp allows businesses to request a 90 day stay.  This means that opposing attorney can’t rack up expensive attorney fees during discovery, while you decide what to do (accept their settlement or not).


Benefits of SB 1608

The effects of SB 1608 offer several included benefits for business owners whether they get CASp inspected or not.

1. Litigating attorneys who demand money must also include a statement advising the business what their rights are.  So if you haven’t got CASp, you won’t be able to request the 90 day stay.

2.  SB 1608 limits the amount of the damages to $4,000 per visit.  Furthermore these damages must be related to the plaintiff and explained how they injure the plaintiff.  For example, having detectable warnings helps protect those who are legally blind.  Someone in a wheelchair probably won’t be able to sue for a lack of them.  Grab bars would effect such a plaintiff, however, so they will be able to make a complaint about that.

3. A clause is included in SB 1608 to help lessen the attorney’s fees in a settlement.

4. CASp individuals are going to be more common, at least loosely tied to local building deparments (see item #4 under liabilities of CASp).

5. Architects and contractors will be required to learn about the ADA as part of their continuing education so they can be at least aware of what they don’t know.

6. A State Commission is formed to help interface the Disabled Rights and interests of Building Departments.

7. Cal Chambers also lists “new deadlines” for State building code compliance with ADA requirements.  The Division State Architect was already doing this with the Department of Justice.  It’s important though, to have a codified process as the building code is updated every three years.  The ADA is also updated but less frequently.


Consequences of CASp and SB 1608

CalChambers does recognize the need for some coordination between advocacy groups and the interests of the status quo, but as a business organization, they tend to lean towards the interests of big business.  Much of what SB 1608 does is to help entities that have cash take advantage of SB 1608’s lowering of the cost of lawsuits.  Smaller businesses that do not have funds must rely on pressuring larger property management firms to help with the cost of ADA compliance.

It’s also important to note that CASp cannot stop lawsuits, they can only help make the process more difficult for litigants. One of the long term consequences of CASp is that as businesses get CASp certification, those who do not have it, or cannot afford it will face a steeper battle as they become easier targets for litigation.

Add onto this that the Unruh Civil Rights Act defines violations of the ADA as acts of discrimination — this verbage has not changed.  Intention is unimportant to this ruling, as proven in so many court cases.  Businesses that do not comply with the ADA regardless of getting CASp or not still carry the steep fines associated with acts of discrimination — $4,000.

This heavy responsibility is to be sure, mostly on businesses right now.  CalChambers and other business groups are bound to spread this liability to other responsible parties, such as architects, contractors and Real Estate Agents.  So it’s important that all responsible parties with an interest in a place of public accommodation help make their site ADA compliant,

ADA Reform however, is not finished.  Much of SB 1608 mentions benefits to business — offering little or no compensation for the rights of the disabled.  You can be sure there will be an increased effort of disabled advocates to have their say as well.


All this should be considered in getting an CASp inspection.  For a more of a fiscal view of how to balance these responsibilities with ADA compliance take a look here:

How to put a price tag on your liability.

If you’ve decided that getting an ADA compliance report is for you, congratulations.  Our ADA Consulting Services.

If you have questions or concerns call us at 866 982 3212 extension 1!  Or email us at help@accesssolutionllc.com.  Our advice is always free.

ADA Regulations: Service Animals Part 2


So, to follow up on the complex ADA regulations and interpretations of service animals

The New York Post has posted this article going a little overboard on what is or is not a service animal.  Nonetheless, it does present an interesting point of view.  If business owners were to take this article literally it could get them in trouble with ADA requirements as the scoping is too broad.

For the service goat, assistance monkey and emotional-support iguana, it could be the end of an era. Under new federal rules taking effect Tuesday, the Americans with Disabilities Act will no longer compel shops, restaurants and other businesses to accommodate a menagerie of supposed service animals brought in by the public. Only dogs and some miniature horses will qualify. Moreover, dogs will qualify as service animals only if they’ve been individually trained to assist with a disabled human’s needs.

“The provision of emotional support, well-being, comfort or companionship do not constitute work or tasks for the purposes of this new definition.” And they’ll need to be on-leash unless their work requires otherwise.

Finally. You’d think the Obama administration had, in a fit of common sense, for once chosen to heed a public outcry about zany regulations-gone-mad.
But as usual, the politics are more complicated than that.


Understandably, this is a complex and not well understood area of law. But this, like issues in HR and employee procedures, is something all businesses and institutions should be aware of.

If you want further information on the topic, you can go to these official ADA sites. Or you can look directly at what our services cost.

Have any questions? Call us at 866 982 3212 x2 or email us at help@accesssolutionllc.com