Access for People With Disabilities: the Business Decision

Co-op and condo boards with commercial space in their buildings have been the targets of a wave of lawsuits. The suits, hundreds of them, have been filed by lawyers of dubious repute on behalf of clients with disabilities, claiming that the buildings' commercial spaces don't comply with the Americans with Disabilities Act (ADA). The goal is not to make the spaces accessible, but rather to collect a small fee for the plaintiff and a large fee for the lawyer.

Though the practice has the strong whiff of a "shakedown," says Andrew Weltchek, an attorney at Cohen, Hochman & Allen, there's no escaping this fact: "The right of the disabled plaintiff to have access is very clear."

Street access is the most vulnerable area. Boards should ensure that any commercial space in their buildings with an entrance not at sidewalk level installs a ramp or has a portable ramp available. Note that the ADA requires a permanent ramp only if installing one is "readily achievable" – otherwise, a portable ramp is acceptable. If a business has two public entrances, only one, in most cases, must be accessible.  

Which, says Weltchek, raises a question: "What is the cost-effective, legally required, responsible business decision for the co-op or condo to make?” 

The answer will depend on circumstances. “If you're doing a major [retail-space] renovation and the cost of putting a permanent ramp or lift is relatively minor,” he says, “then by all means do it then and there. But if you have an old building and no one has sued you yet, you can kick the can down the road. It may or may not be the most morally upstanding thing, but you're making make a business decision to wait until you might get caught.’’ 

If that's the case, insurance becomes especially important. “Three types of insurance might cover it,” Weltchek says. “The building or the tenant or the owner will usually have a comprehensive general-liability policy. Those rarely have coverage for ADA claims, but it's worth looking into.’’ Second, “the tenant will almost certainly have an employment-liability policy, since disabled employees, like disabled customers, are also a protected class. Finally, "you may get an umbrella (excess liability) policy that covers miscellaneous risks. You can consult your insurance agent and try to find coverage that would protect you and at least see how much it costs. Then consult with an architect and get an estimate of what physical modifications would cost. Fixing the problems might be cheaper than getting insurance for the problem.’’