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Accessibility Requirements for Employers Under the Americans with Disabilities Act
February 27, 2019
Parsons Behle & Latimer Legal Briefings


A client recently contacted me for guidance on accessibility under the Americans with Disabilities Act (ADA) because the client was in the process of hiring a new employee who used a wheelchair. The client rents office space and wanted to understand its organization’s obligations under the ADA.  We discussed the following two questions.   

Question 1:  Is a landlord or tenant responsible for ensuring an office building is handicap accessible?

 The answer is that both the landlord and the tenant (in this case, the employer) are responsible for ensuring accessibility. 

Owners, landlords and tenants can be jointly and severally liable in the event of non-compliance with the ADA. Significantly, a landlord may not shift liability for ADA compliance to its tenants.  The parties’ lease may shift the cost of remediating an office or manufacturing space to the tenant but doing so does not release the landlord from liability in the event of a violation.  Landlords, as owners of “public accommodations,” have an independent duty to comply with the ADA and can therefore be liable for ADA compliance on property leased to and controlled by its tenants.  Further, tenants are not subject to liability for violations in areas that are not under their exclusive control, such as common areas (i.e., shared reception, lobby, hallways, restrooms, kitchen or dining areas).  Some courts have held that landlords cannot shift the financial responsibility for ADA compliance to architects and builders because to do so defeats the purpose of the ADA.  See generally, 42 U.S.C. § 2182(b)(2)(A)(iv) (1994).

The EEOC has advised that an employer should remember its obligations to make reasonable accommodations when it is negotiating contracts with property owners.  See 42 U.S.C. § 12112(b)(2) (1994); 29 C.F.R. § 1630.6 (1997) (…employers are prohibited from participating in a contractual relationship that has the effect of subjecting qualified applicants or employees with disabilities to discrimination.)   A property owner should carefully assess a request from an employer to make physical changes that are needed as a reasonable accommodation because failure to permit the modification might constitute “interference” with the rights of an employee with a disability.  See 42 U.S.C. § 12203(b) (1994); 29 C.F.R. § 1630.12(b) (1997). Other ADA provisions may require the property owner to make the modifications.  For example, under Title III of the ADA, a private entity that owns a building in which goods and services are offered to the public has an obligation, subject to certain limitations, to remove architectural barriers so that people with disabilities have equal access to these goods and services. 42 U.S.C. § 2182(b)(2)(A)(iv) (1994). Thus, the requested modification may be something that the property owner should have done to comply with Title III.  See EEOC “Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,”  No. 915.002, Issued on October 17, 2002.[1]

For optimal results, landlords and tenants should work together to address accommodation and accessibility matters.

[1] Accessed at https://www.eeoc.gov/policy/docs/accommodation.html


Question 2:
  How much accommodation is sufficient?

The short answer is: “It depends.” 

Under Title I of the ADA, employers are not required to make existing facilities accessible until a particular applicant or employee with a disability needs an accommodation. tThen the modifications should meet that individual’s work needs. Employers do not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits (EEOC, 1992). 

While employers must remove architectural barriers, the ADA and promulgated regulations interpreting the law do not require installation of specific items or tools beyond ramps.  28 CFR § 36.304.[1]  Some reasonable steps to removing barriers may include widening doors and installing accessible-door hardware. However, employers are empowered and encouraged to consider the needs of their employees and the specific limitations of their facilities. 

[2] See https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm

 

To learn more about this topic or other employment-related issues, contact Maria Hart at (208) 562.4893 or click here to contact Maria via email.  

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