How Do I... Comply with Disability Law (Part 1)

Many owners of very small businesses erroneously believe that they are exempt from complying with the Americans with Disabilities Act.

Part of the confusion stems from the law's requirements that a firm with 15 or more employees must take special measures to accommodate its disabled employees, but a business of any size must provide good public accessibility for disabled customers.

"The important thing for small businesses to understand is that there is no 'safe harbor' provision when it comes to public accommodation for the disabled," said Elizabeth Gaudio, senior executive counsel with the National Federation of Independent Business Legal Foundation.

The law is more flexible if a firm is housed in a building built before January 1993. "Those facilities don't have to necessarily match up with every requirement in the ADA, but they do have to remove architectural barriers to allow access to the disabled," said Gaudio. For post-1993 buildings, the ADA requirements are stricter.

An ice cream shop with five employees that sits next door to a large department store with hundreds of employees each must follow the same requirements to widen a doorway, offer "curb cuts" into a sidewalk allowing easy maneuverability for wheels or offer a handicapped-accessible public restroom, for example.

The law's requirements to make accessing public buildings easier for the disabled are a bit nebulous, Gaudio notes. "It says that barrier removal should be 'easily accomplishable without much difficulty or expense' and that's open to interpretation. It's not clear what is 'too expensive.'"

Gaudio also suggests that small business owners include language in their lease that would require their landlord, building owner or property manager to assume responsibility, where feasible, for ensuring that space obligations had been met under the ADA.

"The law holds the business owner and the building owner equally responsible [for ADA compliance]," said Gaudio. "There's no 'I'm-the-tenant defense'."

A small shop in a strip mall, for example, generally has no control over whether there are handicap spots available, where there are curb cuts and if there's sufficient lighting in the parking lot. "It's important that an exterior of a shop is up to code because someone could come along and sue every tenant in that strip mall," said Gaudio. A business owner should make sure that the landlord or property manager has the exterior covered because the business owner is probably only allowed to make modifications to the interior of a store.

"If you do any sort of modifications, make sure you cover ADA compliance with your architect or contractor," said Gaudio. She notes that while most city or municipal codes incorporate ADA requirements, a business owner shouldn't assume that. It should be a red flag to a proprietor if their contractor or architect isn't familiar with ADA building code.

For general information on compliance, Gaudio recommends this brochure published by the U.S. Department of Justice and the Small Business Administration: The ADA Guide for Small Businesses (pdf).

The Justice Department also offers a 13-minute video designed to identify common mistakes that small businesses make when trying to comply with the ADA and a host of information on its ADA Web site, including a list of contact numbers for federal agencies and other groups offering information about ADA understanding and compliance.

The next Small Business post will look at tax incentives for complying with disability law.

By Sharon McLoone |  August 14, 2007; 3:00 PM ET How Do I...
Previous: GAO Reports Focus on Minority Businesses | Next: How Do I ... Comply With Disability Law (Part II)

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As Chairman of the Massachusetts State Vocational Rehabilitation Council's Task Force on Self and Home Based Employment for People with Disabilities, I take a good deal of interest in Elizabeth Gaudio's commentary on ADA compliance with respect to small business exemption. With respect to writing individual plans of employment for entrepreneurs and home based workers and independent contractors, I would think that VR Counselors would need to be mindful of the associated costs of accessibility and compliance not only for the worker/entrepreneur but also for any visitors to their place of business. This may require that the RSA as well as state VR Commissions to take a second look at the costs and associated budgetary allocations for consumers seeking either a entrepreneurial or a home based worker outcome before allocating VR funds and approving future plans. It may further require a second look at existing plans to insure that they will be in compliance with ADA. Where the commentary is limited to architectural issues, other access issues may need to be considered as well such as web site accessibility for example.

Regards,
OWEN P.DOONAN III, Chairman of the Board
THE-Group [The Handi-CAPABLE Executive Group]

Virtual management, IT & mentor consultants to Entrepreneurs, Professionals and Executives with disabilities. Advocates for virtual access to public meetings and home based employment for the homebound and people with severe limiting disabilities.

Statutory Member, Massachusetts State Rehabilitation Council.
Chairman, Massachusetts Statewide Task force on Home Based and Self Employment for people with disabilities
Member, AT [Assistive Technology] Act Advisory Council
Founding member Massachusetts Statewide Task force on Acquired Brain Injury [ABI] & Traumatic Brain Injury [TBI].
Member Easter Seals - MRC Assistive Technology Loan Review Committee

P.O.BOX 2169
DUXBURY, MA 02331
E-mail: mentor-one@usa.net

Posted by: Owen Doonan | August 20, 2007 7:22 PM

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