Godfrey & Kahn Updates
April 14, 2011
by Richard S. Marcus, John T. Reichert and James A. Sheriff
On September 15, 2010, the U.S. Department of Justice issued a final rule amending the regulations under the Americans with Disabilities Act that govern places of public accommodation such as banks and other financial institutions. These ADA regulations are administered by the DOJ.
The DOJ has issued new guidelines to implement the regulations, which essentially adopt the ADA Accessibility Guidelines that were issued by the DOJ in 2004. These guidelines cover automated teller machines ("ATMs"), along with a myriad of other facilities in public accommodations. While some ATMs already comply with the guidelines or can be upgraded to comply, such compliance has been voluntary to date.
What do the new regulations require?
The ADA regulations require places of public accommodation (like a bank) to implement so-called "auxiliary aids" at ATMs unless doing so would result in an "undue burden." Places of "public accommodation" are broadly defined, and include, for example, casinos, bars, restaurants, hotels, convenience stores, airports, hospitals, cinemas, stadiums, grocery stores, shopping centers, and places of recreation or education. One thing the new regulations require is that ATMs have certain communication-related elements for handicapped people, such as being speech-enabled to assist visually impaired consumers. The DOJ considers these to be "auxiliary aids." Under the new regulations, existing ATMs must be retrofitted to meet the new standards for communication-related elements, unless doing so would be an undue burden. While the compliance date in the regulations is March 15, 2011, the DOJ has publicly stated that compliance will not be required until March 15, 2012.
The ADA regulations also require public accommodations to "remove barriers" that impede access for handicapped individuals, if doing so would be "readily achievable." Under the new regulations, for ATMs, this covers such ATM "elements" as raising input device controls so they are tactually discernable, or arranging key-pads in a twelve key ascending layout. The compliance date for these elements is generally March 15, 2012. There is a safe harbor for elements that comply with the 1991 standards issued by the DOJ, which do not need to be retrofitted to meet the new 2010 standards unless and until they are "altered" after March 15, 2012. But elements that do not meet the 1991 standards, and so-called "supplemental" elements (those that were added by the new standards and are not addressed in the 1991 standards), must be upgraded by March 15, 2012 unless doing so would not be readily achievable.
What businesses are covered by the regulations?
Not only financial institutions, but most places that offer ATMs (such as restaurants or convenience stores), are considered places of public accommodation and are covered. Financial institutions that own ATMs which are located in non-branch locations will have to make sure those ATMs and their surroundings comply with the new ADA standards. If the ATMs are leased, note that many ATM lease agreements require the lessee to assure ADA compliance and to indemnify the lessor for any costs or penalties for violations of the ADA. Under the new rules, only one ATM per location needs to be compliant with the new ADA standards. An exterior ATM is considered to be in a separate location from an interior ATM. This means that bank locations which have both interior and exterior ATMs must provide at least two compliant ATMs -- one interior and one exterior.
What changes are required in ATMs and their surroundings?
The new ADA standards include a variety of requirements too lengthy to summarize in this Alert. The leading ATM manufacturers and servicing vendors have been following this subject closely and are familiar with the technical requirements under the new rules. Of course, we have all of this information also if you would prefer to discuss this subject in more detail with us.
How can I determine whether the required changes are readily achievable or create an undue burden?
The new regulations define readily achievable as "easily accomplishable and able to be carried out without much difficulty or expense." The regulations define undue burden to mean "significant difficulty or expense." The regulations provide a list of factors to consider, which are the same for both defined terms. However, the terms are not necessarily synonymous. There may be changes that are not "easily accomplishable" but which can be accomplished without "significant difficulty or expense." And remember, the "undue burden" exception applies to the communications-related elements in the new ADA rules, while the "readily achievable" exception applies to the access-related elements.
The exceptions in the ADA rules are subjective in nature, and whether the relevant exception applies to a particular financial institution will depend on its unique circumstances. But even if the relevant exception applies, it is not a "get out of jail free" card. Neither exception to the new ADA standards is permanent. Retrofitting five ATMs to be speech enabled may be beyond a financial institution's means and therefore an undue burden today, but that does not mean the financial institution won't have sufficient funds to do so in the future.
What are the penalties for non-compliance?
The law allows a private action to be brought by a disabled person against a financial institution to enforce compliance. A court can order the financial institution to bring its ATMs into compliance and can award attorneys fees to the party bringing the action. The DOJ can intervene in a private suit and also can bring its own independent enforcement action. If the DOJ sues, the court can assess a civil penalty of up to $55,000 for a first offense and up to double that amount for subsequent offenses; award monetary damages to persons aggrieved; and order compliance by the financial institution. In a DOJ initiated suit, when considering the amount of civil penalties to assess, the court must take into account any good faith efforts by the financial institution to comply.
What should financial institutions be doing?
Every financial institution should adopt and implement a compliance plan to enable it to meet the March 15, 2012 deadline. The plan should address any "readily achievable" or "undue burden" exceptions which the financial institution intends to rely on. Particularly if the financial institution is not going to meet the March 15, 2012 deadline in reliance on these exceptions, having and implementing a compliance plan will mitigate the impact if an enforcement action by the DOJ is brought against the financial institution.
The starting point is to contact your ATM vendor to learn more about the detailed requirements and the costs to upgrade your ATMs to comply with the new ADA standards. Godfrey & Kahn banking attorneys also can help your institution to understand its obligations under these new ADA rules and successfully manage it through the compliance process. If you would like to discuss this subject with one of our banking attorneys, please either call or email Rick Marcus (414-287-9640) (firstname.lastname@example.org), or John Reichert (414-287-9674) (email@example.com).