While most employers are aware that Title I of the Americans with Disabilities Act (ADA) prohibits discrimination in employment against persons with disabilities, most employers are less familiar with Titles II and III of the ADA which requires privately owned business that provide goods or services to the public (retail store, hotel, bank, law firm, Etc..) and commercial facilities (warehouse, factory, office building) designed or constructed after January 26, 1993, or altered after January 26, 1992, to comply with certain regulations published by the DOJ to accommodate individuals with a disability.

On September 15, 2010, the U.S. Department of Justice (DOJ) issued new regulations under Title II and III of the ADA that effect design and architechtual standards, accessibility for mobility devices, and the use of service animals.. The new rules, called the 2010 ADA Standards for Accessible Design, must be met by March 15, 2012, for all new construction, alterations, and where required for public accommodations barrier removal. The 2010 ADA Standards for Accessible Design require that:

• New construction and alterations to existing structures comply with the 1991 ADA Design Standards only if the business owner begins physical construction, or places an application for a permit, before September 15, 2010.
• New construction and alterations can comply with either the 1991 standards, or the revised 2010 standards If the business owner begins physical construction, or places an application for a permit, on or after September 15, 2010, but before March 15, 2011.
• Any new construction, or alterations, performed on or after March 15, 2011 must comply with the new 2010 standards.

Businesses that currently comply with the 1991 standards and perform no alterations on or after March 15, 2011, will not need to make any changes to comply with the revised standards.

Design and Architectural Changes

The 2010 ADA Standards for Accessible Design provide new specifications for a wide range of architectural access features, including public stairwells, elevators, restrooms, parking spaces, signage, and assembly areas. For example, the old regulations required a restroom be configured with a "front" method of allowing a person to transfer from a wheelchair to a toilet. Under the new regulations, a bathroom stall must now must provide clearance for an individual in a wheelchair to access the toilet both from the front and side. The new regulations also change the height and distance requirements for dispensers (e.g. toilet paper). The new regulations provide that the side reach range must now be between 15 and 48 inches in height (instead of 9 and 54 inches).

Mobility Devices

The new 2010 regulations clarify a business’ obligation to accommodate mobility devices such as wheelchairs and other power driven devices. Under the new regulations, wheelchairs must be permitted in ALL areas open to pedestrian use. Other power devices must also be permitted, unless the owner can demonstrate that the use of such devices would fundamentally alter the business owner’s programs, services or activities, or would create a safety hazard.

Service Animals

Previous regulations did not specify what types of animals qualified as a service animal. The new regulations define a service animal specifically as a DOG trained to perform tasks that mitigate the effects of a disability, such as picking up an item; “…Other species of animals, whether wild or domestic, trained or untrained, are not service animals.” The new regulations are specifically state that emotional support animals are not “service animals,” but psychiatric service animals trained to remind its handler to take medicine, to provide safety checks, or room searches, for individuals with post-traumatic stress disorder, and/or to stop its handler from harming him- or herself are service animals. Business owners should never ask a person with a service dog about the nature of his or her disability, but the owner may ask if the animal is a service animal. Business owners should also be aware that California law requires businesses to grant access to service animals in training with a qualified trainer, regardless of whether that person has a disability.

Landlord versus Tenant….Both Are Responsible For ADA Compliance.

Many commercial landlords and tenants wrongly assume that the lease determines who is responsible for complying with Title III of the ADA. Under federal law, regardless of what a lease says, both the landlord and the tenant are required to comply with Title III of the ADA, and both may be held liable. If a commercial lease states that the tenant shall be responsible for any and all ADA compliance issues, a disabled individual wrongfully denied access can sue both the landlord and the tenant. It will be up to the landlord to later seek indemnification from the tenant, assuming the tenant has the funds to pay any and all of the damages assessed.