The ADA and Small Business Owners: What You (Really) Need to Know
April 26, 2020
Jennifer Perry, Access Specialist, Northeast ADA Center
“I own a small business that is grandfathered from the ADA because our building is old. Sure, I would like to be more accessible, but legally I’m not required to make any changes because my business is “pre-ADA” and I just don’t have the money to make any changes…”
The statement above illustrates what is possibly the most misunderstood piece of the ADA “puzzle”.
I say this because here at the Northeast ADA Center we frequently we receive calls from well - intentioned stakeholders that are completely unaware that the age of the building that houses their business does not in itself alleviate the need to consider how customers with disabilities access your business.
For some of you reading this, that may cause a light bulb moment.
So, to reiterate, just because your business is located in a building built “pre-ADA”, which generally means built prior to 1993, you are not exempt from examining the barriers to accessibility that your customers face. This is because of language in Title III of the ADA that requires business owners to remove barriers to accessibility that are deemed “readily achievable”. Title III of the ADA applies to places of public accommodation (which include businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors' offices).
The Title III ADA regulations specifically state that: “A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense”. So when you look around your business that was built pre-ADA, the standard that you must use to determine if the barriers to accessibility that your customers face should be corrected or not, is the readily achievable standard, or in other words, can the barrier(s) to accessibility at your place of business be corrected “easily and without much difficulty or expense.” The gray area here is that “easily accomplishable and without much difficulty or expense” is hard to quantify from business to business. The U.S. Department of Justice (DOJ), the federal agency that enforces Title III of the ADA, expects that every business owner reviews their own set of circumstances, including the nature of the barrier(s) to accessibility and their financial resources (or those of any parent companies or organizations) when determining whether or not the removal of barriers is ultimately “readily achievable” for their particular business.
It is worth noting that some barriers to accessibility can be corrected relatively easily. For example, providing accessible parking spaces in a parking lot that does not have them is generally considered to be readily achievable. Installing an elevator in a multi-story building would obviously involve much greater expense, and for this reason, is typically considered to be beyond “readily achievable”. One of the keys to addressing barriers to accessibility in businesses that were built pre-ADA is to remember that the obligation to remove barriers is an ongoing one. For example, if your business has several steps at the entrance, your customers with physical disabilities likely will face challenges visiting your business. As a business owner with this type of barrier at the entrance of your business, the expectation (under the ADA) is that you have continually re-evaluated your ability to replace the steps at the entrance of your business with an accessible option, such as a ramp or lift. While this ongoing obligation has limits, remember that it has been in place since the passage of the ADA over twenty five years ago. Admittedly, some barriers to access might not be readily achievable if implemented immediately; but conversely, if plans are made to identify a period of time over which money can be saved to eliminate a barrier to access with an expectation that in 1, 2, 5, 7 (and so on) years (as appropriate given your businesses resources), with the purpose of eliminating that barrier at a specific time, you have shown a good faith effort to meet your ADA obligations. The point is that having an awareness of barriers to accessibility, taking steps to determine how they can be overcome, developing a plan to address those improvements (including a time-frame for improvements), and finally implementing those improvements if they are readily achievable, is critical for any small business owner. This process is sometimes referred to as a developing a “Barrier Removal Plan”. Here are some additional examples of barrier removal actions typically considered to be “readily achievable” from the ADA Title III regulations:
(1) Installing ramps;
(2) Making curb cuts in sidewalks and entrances;
(3) Re-positioning shelves;
(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;
(5) Re-positioning telephones;
(6) Adding raised markings on elevator control buttons;
(7) Installing flashing alarm lights;
(8) Widening doors;
(9) Installing offset hinges to widen doorways;
(10) Eliminating a turnstile or providing an alternative accessible path;
(11) Installing accessible door hardware;
(12) Installing grab bars in toilet stalls;
(13) Rearranging toilet partitions to increase maneuvering space;
(14) Insulating lavatory pipes under sinks to prevent burns;
(15) Installing a raised toilet seat;
(16) Installing a full-length bathroom mirror;
(17) Repositioning the paper towel dispenser in a bathroom;
(18) Creating designated accessible parking spaces;
(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
(20) Removing high pile, low density carpeting; or
(21) Installing vehicle hand controls
If you ultimately determine that the elimination of barriers to accessibility are not readily achievable, you should then come up with other ways to make sure that your goods, services, facilities, privileges, advantages, or accommodations are available through alternative methods, if those methods are readily achievable. Here are a few examples of such alternatives from DOJ:
(1) Providing curb service or home delivery;
(2) Retrieving merchandise from inaccessible shelves or racks;
(3) Relocating activities to accessible locations;*
*It is also key to remember that if you engage in alterations to your business (i.e. a renovation to your business) this triggers a higher level of accessibility compliance, as compared to the barrier removal efforts described above, which are generally done with the sole purpose of improving accessibility.
As cost often plays a role in barrier removal, you should know that there are tax deductions for business owners and there is a small business tax credit to help alleviate some of the costs associated with barrier removal efforts. You can read more about these options here.
Here are several resources to assist you if you would like to learn more about the ADA’s obligation for small business owners to remove barriers that are readily achievable:
-The Northeast ADA Center has a 4 part webinar series on “How to Develop a Barrier Removal Plan” that can be found here. There are also a number of archived webinars on the website re: Accessible & Universal Design.
-The Northeast ADA Center, as well as other ADA Centers nationwide, routinely provide technical assistance and training programs for a number of stakeholders, including businesses and cultural venues. You can always call our technical assistance line at 1.800.949.4232 or visit http://adata.org/find-your-region to locate your closest ADA center and speak with one of their technical assistance specialists.
Institute for Human Centered Design, ADA National Network
(This link includes a number of fact sheets and publications that explain ADA obligations for business owners)