Disability Access Rights Laws
Both Federal and State law prohibit discrimination against people with disabilities. The Americans with Disabilities Act (ADA) is a Federal civil rights law designed to ensure equal access, full inclusion and participation for people with disabilities or impairments. In addition, the State of California has its own disability rights laws, codes and regulations. Under both Federal and State law, people with disabilities are entitled to full and equal access to places of public accommodation, transportation carriers, lodging places, recreation and amusement facilities, and other business establishments where the general public is invited. Together, these laws protect Americans’ civil rights, but while people often refer to both Federal and State laws as "the ADA laws," there are important differences.
The Federal ADA regulations require that all new construction for public accommodations comply with the 2010 Americans with Disabilities Act Standards. In addition, the ADA says that a public accommodation has a continuing obligation to remove architectural barriers (barrier removal) to make sure your business is accessible, even when your business is not otherwise contemplating construction. This includes existing barriers at entrances, aisles, bathrooms, and service counters that may have predated the ADA and your ownership of the business. The California's Disabled Persons Act goes further, and makes a violation of the Federal ADA a violation of California civil rights law, and allows people with disabilities to sue a violating business to recover monetary damages.
State Building Code
The California Building Code lays out specific ways to make your business accessible, but only requires that business owners make improvements whenever they are doing construction or renovation, typically under a building permit. If you renovate your building, then all of your new construction (the area of remodel) must meet the accessibility standards. In addition, you may be required to update some or all of the building’s main entrance, the primary route to the renovated area, and any bathrooms, drinking fountains, or signs serving the area of remodel accessible (path of travel and other features serving the area of remodel).
If the cost of your construction project is under the state valuation threshold, you are allowed to limit the costs of your improvements outside of the area of remodel to 20% of your construction costs. This valuation threshold changes every year.
If your project is valued over the threshold, and you are limiting your improvements outside the area of remodel to 20% of your construction costs, you must obtain approval from the SF Department of Building Inspection to show technical infeasibility or unreasonable hardship. This may not exempt you from litigation on the basis of Federal and State disability requirements.
Disability Access & the State Building Code
Building inspectors do not conduct a full review of your business location for disability access deficiencies; they only check to see if the renovations covered by your building permit meet the level of accessibility triggered under the building code for that specific project. And as discussed earlier, smaller projects are allowed an exception under the 20% rule and may not result in a fully accessible facility. However, even though the California Building Code requires that businesses make accessibility improvements only when they are doing other construction or renovation, your entire business location must still comply with the ADA barrier removal requirements.
The only defense for your business not being fully accessible is if the necessary improvements are not currently readily achievable. Readily achievable means easily accomplishable and able to be carried out without much difficulty or expense. To fall under this exception, you must be able to legally prove that any improvements you did not complete were not readily achievable. Even if you do not complete all improvements, you are still required to make an effort to provide goods and services to people with disabilities.
It can be very difficult for a business to claim either of these exemptions, and you should consult with a CASp and an attorney before relying upon either of them to protect you from a lawsuit. You have an ongoing obligation to make your business accessible. Even if changes are not readily achievable now, they may be in the future. To address this ongoing obligation, you should make a plan with a Certified Access Specialist (CASp) inspector (see below).
Evaluating your Location for Compliance
Landlords are required to make public restrooms and ground-floor entrances/exits accessible, or give you notice if the space may not be ADA compliant.
You can hire a professional Certified Access Specialist (CASp) to evaluate your location. The CASp inspects your location and provides a report. The report either certifies that you have complied with state and federal disability access laws, or explains the steps necessary to achieve full compliance. As part of this inspection you can work with your CASp inspector to develop a timeline for removal of all readily achievable barriers to access.
If you are sued in a state court for not being accessible, having a CASp inspection report makes you eligible to request a 90-day stay of the lawsuit and an Early Evaluation Conference. You may also qualify for a 90-day stay if you have a final job card from a CASp-certified building inspector, or are a small business with 25 or fewer employees and gross receipts of less than $3.5 Million.
Consult with an attorney to determine the best strategy to protect you and your business in the event of an ADA lawsuit. Although working with an attorney can be expensive, some low-cost legal services are available to small businesses. ADA lawsuits commonly cost small businesses tens of thousands of dollars in legal fees and settlements – invest in your business by investing in access.
Last modified date: Thu, 01/19/2017 - 10:28