Focus on: ADA Compliance

Seasonal, temporary and pop-up retailers have an added challenge this year. As of March, any retail space constructed or altered must meet the Department of Justice’s latest ADA requirements and the 2010 Standards for Accessible Design.

That applies to all new retail construction and any alterations to retail spaces; and if an existing facility is used, then retailers must conduct “readily achievable barrier removal.”

Eve Hill, senior counselor to the assistant attorney general for the civil rights division of the Department of Justice and a subject-matter expert on ADA, explained, “The readily achievable barrier removal obligation may be determined partially in light of the temporary nature of the space and whether the retailer already owns the space or is just renting it for a short period of time. Either way, both the retail tenant and the landlord have obligations regarding physical access to an existing space.”

When a retailer moves into a space, they should consider what the barriers are and which ones are “readily achievable” to remove. According to Hill, determining what can be readily removed is based in part on the resources available to the retailer.

“A large regional or national retail company has more resources to dedicate to making the space accessible than a mom-and-pop retailer might have, so that is taken into consideration when deciding what is readily achievable,” she noted.

For the purposes of the ADA compliance, both tenants and landlords are equally responsible to the person with a disability. For instance, if a person with a disability tries to gain access and is unable to do so, they are allowed to sue the landlord, the tenant or both.

When a retailer is opening a seasonal or temporary store in an existing space that was already in compliance with the ADA’s 1990 standards, the retailer doesn’t have to modify the space to the 2012 standards unless they are physically altering the space. Simply adding merchandise or painting the walls does not alter the space, but additions, such as built-in cabinets, movable racks or even temporary point-of-sale lanes, are required to comply with new standards.

Additionally, a pop-up store that may be open for a very short time is still expected to comply with ADA requirements. However, in most cases, the landlord is responsible for making the necessary accessibility modifications and the tenant should make sure the leasing contract spells out who is responsible.

From September through December, retailers are opening more seasonal stores and also dealing with higher traffic and increased inventories. All of these factors contribute to a higher risk for barriers or obstructions to ADA compliance.

“Anecdotally, I hear more complaints about issues such as extra merchandise in aisles so that the aisle becomes inaccessible,” Hill said. “We also hear complaints that people who need assistance have more trouble getting help because the store associates are otherwise occupied and not prepared to help them. And retailers are fitting a lot more merchandise into the same space, so often products are on high shelves and unreachable.”

Making sure store associates are adequately prepared to assist shoppers is one of the more subtle expectations of ADA compliance. As the number of senior citizens and elderly shoppers continues to grow, assisting people with cognitive challenges becomes a larger component of ADA compliance.

“As people get older, they typically need more clarity about where to go and how to conduct business,” Hill added. Store associates should be prepared to volunteer help or assistance without seeming patronizing. You can’t grab a person with a disability and move them to another area in the store but you can offer assistance, which is generally appreciated.”

Her suggestion for retailers opening seasonal or temporary spaces is to start by evaluating the space for barriers and envisioning how they would get through the store if they had a disability. “Think about a variety of disabilities — not only people with wheelchairs and walkers but also those whose vision is impaired, or who can’t hear as well.”

Although the Department of Justice doesn’t recommend specific training for how to comply with ADA requirements and serve the public, the Department of Education has an ADA network with 10 regional centers that provide training and information to local areas. Retailers and store managers are encouraged to use these regional ADA centers as a training resource.

“Another way to gain insight into the needs of people with disabilities is to actually employ people with disabilities in your stores,” Hill advised. “The only problem with hiring someone with a disability on a temporary basis is that you are going to want to bring them on permanently.”