Americans with Disabilities Act Compliance Kit
Posted on January 2, 2013 by AAR
This Question and Answer information packet supplements the ADA Compliance Kit distributed by the NATIONAL ASSOCIATION OF REALTORS® in January 1992 and covers the most frequently asked questions from REALTORS® in relation to the ADA. (Prepared by the Legal Affairs Department of the NATIONAL ASSOCIATION OF REALTORS®, November, 1992).
TITLE I – Employment
Question #1: Does Title I cover independent contractors and apply if a real estate office has 15 independent contractors rather than employees?
Answer: Title I covers employees, although the Office on the ADA has indicated that whether an individual is an employee or independent contractor will be carefully evaluated under federal law. For real estate brokers, that means that the broker/agent relationship will be scrutinized to determine whether an independent contractor relationship actually exists or whether agents are treated as employees.
Question #2: If a real estate company has a number of branch offices, are employees in each branch office counted separately or are the numbers totaled to reach the threshold number for Title I?
Answer: The numbers are totaled (example: three branch offices with 5 employees at each location total 15 employees). Since the threshold number of 15 has been exceeded, Title I applies.
Public Accommodations, Commercial Facilities and Private Entities that Offer Certain Educational Courses.
Question #3: Can a place of public accommodation be covered by both the ADA and the Fair Housing Act (FHA)?
Answer: Yes. The analysis for determining whether a facility is covered by the ADA is entirely separate and independent from the analysis used to determine coverage under the FHA. A facility can be a residential dwelling under the FHA and still fall in whole or in part under at least one of the 12 categories of places of public accommodation.
Question #4: How does the “readily achievable” standard relate to other standards in the ADA?
Answer: The ADA establishes different standards for existing facilities versus alterations to existing facilities and new construction. In existing facilities, where retrofitting may be expensive, the requirement to provide access is less stringent than it is in new construction and where alterations to existing facilities are being made, where accessibility can be incorporated in the initial stages of design and construction without a significant increase in cost.
Question #5: How does a public accommodation determine when barrier removal is readily achievable?
Answer: Determining if barrier removal is readily achievable is a case-by-case decision. Factors to consider include:
1) The nature and cost;
2) The overall financial resources of the entity involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the business;
3) The administrative or fiscal relationship of the business in question to any parent corporation or entity;
4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
5) If applicable, the type of operation of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
Question #6: Are public accommodations required to retrofit existing buildings by adding elevators?
Answer: A public accommodation generally would not be required to remove a barrier to physical access posed by a flight of steps, if removal would require extensive ramping or an elevator. The readily achievable standard does not require barrier removal that requires extensive restructuring or burdensome expense. Thus, where it is not readily achievable to do, the ADA would not require a public accommodation to provide access to an area reachable only by a flight of stairs.
Question #7: Does the ADA require barrier removal in historical buildings?
Answer: Yes, if it is readily achievable. However, the ADA takes into account the national interest in preserving significant historic structures. Barrier removal would not be considered “readily achievable” if it would threaten or destroy the historic significance of a building or facility that is eligible for listing on the National Register of Historic Places under the National Historic Preservation Act (16 U.S.C. 470, et seq.), or is designated as historic under State or local law.
Question #8: Are portable ramps permitted?
Answer: Yes, but only when the installation of a permanent ramp is not readily achievable. In order to promote safety, a portable ramp should have railings and a firm, stable, nonslip surface. It should also be properly secured.
Question #9: If a public accommodation determines that its facilities have barriers that should be removed, but it is not readily achievable to undertake all of the modifications now, what should it do?
Answer: The Office on the ADA recommends that a public accommodation develop an implementation plan designed to achieve compliance with the ADA’s barrier removal requirements. Such a plan, if appropriately designed and diligently executed, could serve as evidence of a good faith effort to comply with the ADA’s barrier removal requirements.
Question #10: Must a real estate agent who uses his/her home (or a portion thereof) as an office, comply with Title III?
Answer: Yes. If a private residence (or a portion thereof) is used for business purposes and clients/customers frequent that location, Title III applies to those areas used for business purposes even if they’re also used for residential purposes. The entrance to the office must also be accessible such as the sidewalk, door, and entryway.
Question #11: Are model homes and open houses places of public accommodation?
Answer: Generally, no. Model homes and open houses do not fall under the 12 categories of places of public accommodation. If, however, the sales office for a residential housing development is located in a model home, the area used for the sales office would be considered a place of public accommodation. Although model homes are not covered, the Office on the ADA encourages developers to voluntarily provide at least a minimal level of access to model homes for potential homebuyers with disabilities. For example, a developer could provide physical access (via ramp or lift) to the primary level of one of several model homes and make photographs of other levels of the home as well as of other models available to the customer.
Question #12: Do both a landlord who leases space in a building to a tenant and the tenant who operates a place of public accommodation have responsibilities under the ADA?
Answer: Both the landlord and the tenant are public accommodations and have full responsibility for complying with all Title III requirements applicable to places of public accommodation. The landlord and tenant must allocate responsibility, in the lease, for complying with particular provisions of the regulation. However, any allocation made in a lease or other contract is only effective as between the parties, and both landlord and tenant remain fully liable for compliance with all provisions of the ADA relating to that place of public accommodation.
Question #13: What if a tenant remodels his store in a manner that would trigger the path of travel obligation, but the tenant has no authority to create an accessible path of travel because the common areas are under control of the landlord? Does this mean the landlord must now make an accessible path of travel for the remodeled store?
Answer: No. Alterations by a tenant do not trigger a path of travel obligation for the landlord. Nor is the tenant required to make changes in areas not under his control.
Question #14: How do we determine if committee members or registrants to our meetings and educational courses are disabled and have special needs?
Answer: Ask! Add a question to your committee appointment letters and all of your registration forms as follows:
Please check here if you have a disability which will require special services at a (meeting/course). Attach a written description of your needs.
And, include a notice in the registration packet (for on-site registrants) asking those with disabilities who require special accommodation to contact the Registration Desk.
Question #15:At our Convention, we’re sponsoring certain tours and recreational activities. Do they need to be accessible to the disabled?
Answer: Generally yes, if they can be made accessible. Since tour company services are open to the public, tour companies are considered public accommodations and may already have taken the steps necessary to comply with the ADA. If they haven’t, you may want to consider a different company that is in compliance. In respect to recreational activities, they should be made accessible to the disabled to the extent it’s readily achievable to do so.
Question #16: If we provide ground transportation to certain social functions during our Convention, do we need to provide special transportation for those in wheelchairs?
Question #17: When auxiliary aids are to be provided, who decides what type of auxiliary aids are acceptable?
Answer: Public accommodations should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective access and communication. In many cases, more than one type of auxiliary aid or service may be acceptable. While consultation is strongly encouraged, the ultimate decision as to what measures to take to ensure compliance rests in the hands of the public accommodation, provided that the method chosen results in effective access and communication.
Question #18: Who is a qualified interpreter?
Answer: There are a number of sign language systems in use by persons who use sign language. (The most common systems of sign language are American Sign Language and signed English.) Individuals who use a particular system may not communicate effectively through an interpreter who uses another system. When an interpreter is required, the public accommodation should provide a qualified interpreter, that is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.
Question #19: Can a public accommodation use a staff member who signs “pretty well” as an interpreter for meetings with individuals who use sign language to communicate?
Answer: Signing and interpreting are not the same thing. Being able to sign does not mean that a person can process spoken communication into the proper signs, nor does it mean that he or she possesses the proper skills to observe someone signing and change their signed or finger spelled communication into spoken words. The interpreter must be able to interpret both receptively and expressively.
Question #20: If a sign language interpreter is required for effective communication, must only a certified interpreter be provided?
Answer: No. The key question in determining whether effective communication will result is whether the interpreter is “qualified,” not whether he or she has been actually certified by an official licensing body. A qualified interpreter is one “who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary.” An individual does not have to be certified in order to meet this standard. A certified interpreter may not meet this standard in all situations, e.g., where the interpreter is not familiar with the specialized vocabulary involved in the communication at issue.
Question #21: What obligations does an examiner have if its facilities are inaccessible?
Answer: Examinations must be administered in facilities that are accessible to individuals with disabilities or alternative accessible arrangements must be made. If the facility in which the examination is offered is not accessible, it may be administered to an individual with a disability in a different room or other location. For instance, the entity might provide the examination at an individual’s home with a proctor. The alternative location must, however, provide comparable conditions in which the test is administered to others.
Question #22: May an examiner require that an applicant provide documentation of the existence and nature of the disability as evidence that he or she is entitled to modifications or aids?
Answer: Yes, but requests for documentation must be reasonable and must be limited to the need for the modification or aid requested. Appropriate documentation might include a letter from a physician or other professional, or evidence of a prior diagnosis or accommodation, such as eligibility for a special education program. The applicant may be required to bear the cost of providing such documentation, but the entity administering the examination cannot charge the applicant for the cost of any modifications or auxiliary aids, such as interpreters, provided for the examination.
Question #23: If a public accommodation makes good faith efforts to comply with the ADA, will that be considered in determining the amount of a civil penalty if non-compliance is found to exist?
Answer: Yes. In considering what amount of civil penalty, if any, is appropriate, the court is required to give consideration to any good faith effort or attempt by the covered entity to comply with its obligations under the ADA. One of the factors to be considered in evaluating good faith is whether the entity could have reasonably anticipated the need for an appropriate type of auxiliary aid needed to accommodate the unique needs of a particular individual with a disability.