Disclaimer: AAA Facility Services is not an attorney. This article should not be interpreted as legal advice. Always consult your legal counsel with questions about the Americans with Disabilities Act.
"Accessibility" is one of those words that makes business owners and operators nervous. The laws surrounding equal and fair access to goods and services are complex and confusing to say the least, and staying in compliance requires an active effort. So the question is: what can California businesses do to stay compliant with accessibility laws?
| THE ADA, THE UNRUH ACT, AND CALIFORNIA BUILDING CODE
The Americans with Disabilities Act, otherwise known as the ADA, is a federal law. That means if a complaint is brought against a business under the ADA, it's not a California issue. That case would be heard in a federal court. However, due to provisions under California's Unruh Civil Rights Act of 1959, these federal cases may be heard in California state courts and are not required to be brought to the federal level.
California also has its own set of discrimination and accessibility laws which are outlined in the CBC (California Building Code) that closely align with the ADA. However, in some cases these regulations can be more restrictive than the ADA. It may seem like semantics, but it's important to understand the differences. The biggest one is that ADA complaints only entitle the plaintiff to attorney's fees while Unruh Act complaints can be awarded up to three times actual damages with a minimum of $4,000 per incident. In addition, the business could see California Building Code violation fines and then still have a federal ADA complaint filed. But some cases may be eligible for reduced damages of $2,000 or $1,000 if violations are corrected within 30-60 days of receiving the complaint.
These laws are designed to ensure equal and fair access for everyone and prevent discrimination. What's important to understand is that discrimination, in the eyes of the law, is not just about actively denying goods or services. It can be passive and entirely unintentional, such as not realizing that a building can't be accessed via wheelchair. But as they say, ignorance of the law is no excuse for breaking it.
| WHO IS SUBJECT TO THESE LAWS?
The simple, short answer is: everyone. The term that pulls a business under these laws is "public accommodation". If a business offers goods or services to the general public, then it cannot discriminate on the basis of the various characteristics, including disabilities, outlined in these laws. That includes websites and other digital services, by the way. So if you're questioning whether there is an accessibility issue with your business, it's far better to err on the side of caution and take the appropriate steps to ensure access.
| BUT... HOW?
In California, your first step is to contact a Certified Access Specialist, or CASp. This is someone specially trained and certified in accessibility compliance in California. They can help you evaluate your business and find the areas where you need to improve accessibility. It's also a good idea to speak with your legal counsel, if for no other reason than to get a second professional opinion. And whenever possible, start from the very beginning and design your business with accessibility in mind. That will save you time and costly retrofitting expenses.
Remember, these laws are intended to prevent discrimination. The silver lining is that they open your business up to even more customers. So while the front-end expense of becoming accessible seems like a burden, it's actually a benefit to you in the long run.
| ONGOING OBLIGATIONS
A common question that building and business owners and occupants often ask is: do older buildings have to follow the ADA and accessibility laws in California? The answer is yes, but it's not a one-time thing.
First things first, there is no such thing as grandfathering when it comes to accessibility compliance in California. Because accessibility regulations are designed to be inclusive, they couldn't allow exceptions for older buildings. That's why you'll frequently see historical structures with oddly modern touches like ramps and rails. Despite the fact that these accommodations may not blend with the building's aesthetics, the important thing is whether the building grants equal access to everyone.
On a similar note, if a building does need to receive updates in order to meet accessibility standards, the responsible parties are not only required to do what is feasible at the time but also have a plan to fully comply with the regulations within a reasonable time frame. The language used in this portion of the accessibility laws is "readily achievable". The building owner's or occupant's obligation is to evaluate all barriers to access, resolve what can be addressed now, and identify fixes for the remaining barriers.
| CONSULT YOUR LEGAL COUNSEL
All of that being said, what can someone do to make sure they are compliant with the ADA? It sounds complicated, but really it's just meant to make life accessible for everyone. If you are offering a public accommodation, it's recommended that you consult your legal counsel to get a professional opinion regard accessibility. Make sure your offering is compliant and have it reviewed regularly for any possible changes to the law.
AAA Facility Services offers CASp services related to accessibility laws in California. Contact us for a free phone consultation or to request compliance evaluation services.