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Impact of the Americans with Disabilities Act Amendments of 2008 on Commercial Real Estate: Part 3

June 13, 2013
»Commercial Real Estate

Post 3 of 3: The ADA, OSHA, and Other Safety Laws and Standards


Previously, we discussed the applicability of regulations promulgated under the Americans with Disabilities Act (ADA) as well as the ADA Amendments that took effect January 1, 2009 to commercial real estate owners and developers.  While requirements of the ADA impact commercial real estate owners and builders in numerous ways, they do not override other health and safety laws and codes when it comes to places of public accommodation.

The ADA does not supersede any health or safety requirements established under federal law, such as the requirements of the U.S. Occupational Safety and Health Administration (OSHA).  Even if the federal standard adversely affects a person with a disability or does not present a business necessity, an employer or building owner must comply with it.  Where you are able to comply with both federal regulations and the ADA, however, you must do so.

The ADA does not take precedence over state or local laws regarding public health and safety, except where the law would exclude an individual with a disability from a particular job due to a health or safety risk.  If this is the case, you as an employer or business owner must evaluate whether the employee poses a “direct threat” to health or safety under the ADA or where a reasonable accommodation would alleviate the threat.  Local laws are not a defense to a failure to comply with the ADA.

As it relates more directly to commercial real estate owners, builders and owners are still expected to follow existing state and local building codes.  The ADA allows the Attorney General of each state to “certify” specific state laws, building codes, and similar ordinances as meeting accessibility requirements under the ADA.  If you as a business owner or real estate developer follow a code or ordinance that is “certified” when building or renovating your property, that is considered valid rebuttal evidence in the case you are accused of not meeting ADA standards for construction or renovation.

Hopefully understanding how and when the Americans with Disabilities Act applies to commercial real estate development, the consequences of its regulations, and its impact on other codes and laws provides commercial real estate owners and developers with valuable insight into their obligations to make and maintain facilities that are accessible to people of all abilities, in the true spirit of the 1990 federal legislation.

Read the rest in our series:

Part 1

Part 2

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