Compliance With The ADA

Posted by msmessenger on Mar 20, 2019 12:00:00 AM

When Are Repairs To A Facility Not “Readily Achievable”?

Self-storage facilities are “public accommodations” under the Americans with Disabilities Act. As such, facility operators are required to remove barriers to access when it is “readily achievable” to do so. Unfortunately, that term is hard to define, and it creates a risk for storage owners and operators when faced with properties where such barriers exist for disabled customers.

Essentially, the question of whether a facility is required to perform the work necessary to remove a barrier to entry is if the work can be “easily accomplished” or otherwise carried out “without much difficulty or expense”. Unfortunately, since all properties are different, and the cost associated with the remedies needed for accessibility are different, the question of whether such work is readily achievable is usually analyzed on a case-by-case basis. Some factors that are included in the consideration include the financial resources of the business using the property, whether the work should be done to create a safe operation, the number of employees working on the property, and the effect of the work on the operation of the business.

Examples of work that are typically considered readily achievable include: ramps where stairs are the only option to access, curb cuts in sidewalks, re-positioning tables, furniture and shelving to allow a clear path of travel, widening doorways, installing accessible door hardware, creating designated accessible parking spaces, and lowering light switches and towel dispensers. Again, each of these items might be accomplished easily or, in certain circumstances, may be challenging to accomplish.

Certainly, the work needed to remove barriers to access is not meant to be a burden to the business. The goal is that the measures taken to remove barriers should enhance the usability of the public accommodation to those with disabilities. In certain circumstances, the changes to be made may not be able to meet the guidelines provided for in the ADA, but such deviations still enhance the use of the property by the disabled customer. These types of changes are also permitted as long as the deviations do not cause a safety risk to the users.

In terms of priority, the work to be done should always focus first on the access allowing the customer the use or enter into the public accommodation. The next priority would be the interior changes that are needed, such as with the customer counter and, with self-storage, the units themselves. Based on the ability of the business to perform these changes, it is often helpful to create an overall accessibility plan and implement the needed work as appropriate. Having a “plan” can certainly demonstrate the good faith interest and intent of the facility operator and show their desire to make their facility accessible to all.

At the end of the day, the law does not require that changes be made if such work to the property would create an “undue hardship” on the business to perform the needed changes. “Undue hardship”, like the term “readily achievable”, is hard to pin down, but essentially relates to the overall financial impact to the business associated with the changes needed. “Undue hardship” is generally defined as “significant difficulty or expense incurred by a covered entity”. In other words, if the effect on the expenses and resources of the business are too great, the facility could claim that they cannot afford the work needed and could seek an exemption to the ADA requirement. Certainly, the larger the company, the higher the bar will be set to obtain a financial exemption from the ADA requirements.

Until next month, happy storing!

Scott Zucker is a partner in the law firm of Weissmann Zucker Euster Morochnik & Garber, P.C. in Atlanta, Georgia.