• New ADA Retrofit and Construction Requirements: Will You be Ready?
  • January 30, 2012 | Author: Jeffrey S. Ammon
  • Law Firm: Miller Johnson - Grand Rapids Office
  • Building owners and tenants must determine by March 15, 2012 whether they need to retrofit existing buildings or leased spaces to satisfy the ADA's new construction standards.

    Much confusion exists on how to apply these standards to existing facilities. And to which facilities those standards even apply. In fact, the 2012 rules create more confusion than the original 1991 ADA rules. Read on to separate myth from fact - and to learn how to prepare yourself for March 15, 2012.

    Myth: The ADA requirements apply only to new buildings and building additions.

    Fact: The ADA requirements apply also to existing facilities, whether or not the owner or tenant plans any alterations or additions. You must remove existing barriers to accessibility if "readily achievable". You must provide auxiliary aids for disabled persons unless doing so would place an "undue burden" on your business.

    Myth: You must retrofit your existing building to meet the new 2012 construction specifications.

    Fact: Retrofitting may not be required in all parts of the building or to all features in the building. That depends on how old the building is, when alterations were last made, whether those alterations were made to conform to the 1991 ADA construction standards, and how profitable - yes how profitable - the building owner or tenant may be.

    Myth: You must now retrofit again even though you retrofitted 20 years ago to meet the original ADA standard.

    Fact: The new ADA rules contain a safe harbor that exempts you from retrofitting if you already did so to satisfy the ADA's 1991 construction standards. So building owners and tenants must consider two levels of grandfathering exemptions: those created in 1991 and those that were added for 2012.

    Myth: Business owners may ignore these new rules because the architects take care of them.

    Fact: Architects and other design professionals are licensed and trained to design new facilities to meet the 2012 standards. But architects and engineers are not licensed, trained, or well-equipped to apply ADA's legal standards to existing facilities. For example, how should you apply the ADA criteria to determine whether barrier removal is "readily achievable"? Or whether a particular auxiliary aid need not be provided because it is an "undue burden"? And how will the Department of Justice enforce the ADA standards?

    Myth: Tenants may ignore these new rules because the ADA makes the building owners responsible.

    Myth: Building owners may ignore these new rules because the ADA places responsibility on tenants and others using the space.

    Fact: The ADA makes building owners and tenants jointly and severally responsible. ADA responsibility can even extend to those who aren't even tenants, such as property managers, licensees, concessionaires, etc. Even though this responsibility is collective, landlords and tenants should carefully negotiate lease language to allocate responsibility between the parties. Don’t sign any new leases or extensions without addressing these responsibilities.