When architects and engineers agree to “comply” with the Americans with Disabilities Act (ADA), they take on significant legal, design, and financial risks. While architects rarely own or operate the buildings they design, contractual language and the nuances of accessibility requirements expose them to distinct pitfalls.
BRIEF ADA BACKGROUND
As a civil rights act by Congress signed into law on July 26, 1990, by President George H.W. Bush, it includes accommodations for people with disabilities in buildings and other aspects of the built environment. Amendments signed in 2008 by President George W. Bush which took effect on January 1, 2009, served to broaden the definition of disability and strengthen protections.
As a result, a more accessible environment opened up social, recreational and employment opportunities for people with disabilities. It lessened the reliance of people with disabilities on assistance because they could now be productive members of the community.
If architects’ or engineers’ contract with their client (the project owner) explicitly requires in their scope of professional services providing "full compliance with all ADA laws," the property owner can sue the A/E directly for breach of contract to recover the cost of retrofits or renovations, even if the owner is technically the entity cited by authorities having jurisdiction over a project. In addition, the ADA claim can also include an allegation of negligence—that the A/E fell below their standard of care for compliance, or an onerous indemnification clause. Worse yet, if the A/E’s contract with their client contained a warranty of their design for compliance with the ADA, the claim could include a breach of warranty which would have professional liability complications for insurance coverage.
RISK MANAGEMENT APPROACHES FOR CLAIMS
Thus, it is unwise for an A/E to agree in their contract with their client to state that their services will “comply with all laws, rules and regulations.” It is much better to use the language that states that the “A/E shall take into account applicable laws, rules and regulations” in their scope of professional services.
As a disclaimer for the defense of an ADA claim, the A/E can include in its contract with its client the following.
The Design Professional and the Owner acknowledge that the ADA is complaint driven, and that ADA requirements may be subject to various interpretations by individuals or entities not involved with Project design, construction or code enforcement. Interpretations of any aspects of the design or construction of the Project for ADA compliance by authorities having jurisdiction is not a guarantee or warranty, express or implied, that subsequent interpretations will be ADA satisfied. Therefore, the Design Professional will use reasonable professional efforts to interpret and take into account applicable ADA requirements as they apply to the Project. However, notwithstanding the above, the Design Professional cannot and does not guarantee or warrant, express or implied, that the Owner’s project will comply with any and all interpretations of ADA requirements as they apply to the Project.
Another approach is to engage a third-party code consultant such as a peer-reviewer. This would involve a specialized, independent accessibility reviewer or Certified Accessibility Specialist (CASp) for complex public accommodations, multi-family housing, or large tenant improvements. The primary global standards for accessibility specialist certifications are offered by the International Association of Accessibility Professionals.
It is noteworthy that design professionals all have continuing education to maintain their professional licenses, but at least two states require separate training for accessibility and ADA compliance.
California: Requires 5 hours of coursework on disability access requirements (covering the ADA of 1990 and state/federal access laws) as part of a 10-hour biennial renewal cycle, according to the California Architects Board.
Texas: Requires at least 1 hour dedicated to barrier-free design (complying with Texas Accessibility Standards, the ADA, or Fair Housing Guidelines) as part of a 12-hour annual requirement, according to the Texas Board of Architectural Examiners.
CONCLUSION
As in all projects, risk management tools are always helpful. However, these tools do not replace good relationships of all project participants—Project Owner, Design Professional and its consultants, Construction Contractors, code officials, etc., in order to accomplish a successful conclusion. And keep in mind that complying with the International Building Code (IBC) or local building codes does not automatically guarantee ADA compliance; the ADA is a separate federal civil rights law.
NOTICE: This article is for informational and educational purposes only and should not be construed as legal advice. Please consult a legal professional in your area for advice regarding your firm’s individual circumstances. On all matters that may involve legal and any other issues, readers of this article acknowledge and agree that they will seek the advice of their own legal counsel.
About the Author of this Risk Management Building Block Article
As a risk manager for the last 20 years for the design profession, Eric O. Pempus, FAIA, Esq., NCARB has experience in professional liability insurance and claims, architecture, engineering, land use, law, and a unique background in the construction industry. Prior to risk management, he has 25 years of experience in the practice of architecture/engineering, and as an adjunct professor teaching professional practice courses at the undergraduate and graduate levels for 37 years at Kent State University’s College of Architecture & Environmental Design.
As a Fellow of the American Institute of Architects and AIA National Ethics Council 2021 Chair, he has demonstrated his impact on architectural profession. He has presented numerous loss prevention and continuing educational programs to design professionals since 2000 on topics of ethics, contracts, and professional practice in various venues across the United States and Canada. He is a former member and chair of his city’s Board of Zoning & Building Appeals for 24 years, and is a licensed architect, attorney, and property & casualty insurance professional.
His educational background includes a JD from Southwestern University School of Law, Los Angeles; Master of Science in Architecture from University of Cincinnati; and BA in psychology/architecture from Miami University, Oxford, Ohio.
The above comments are based upon DesignPro Insurance Group’s experience with Risk Management Loss Prevention activities and should not be construed to represent a determination of legal issues but are offered for general guidance with respect to your own risk management and loss prevention. The above comments do not replace your need for you to rely on your counsel for advice and a legal review, since every project and circumstance differs from every other set of facts.
Disclaimer: The viewpoints expressed in this article are those of the author(s) and are not necessarily approved by, reflective of or edited by other individuals, groups, or institutions and this article is an expression by the author to generate discussion and interest in this topic.