By: Isabel B. Ekman, Esq.
New and growing businesses often struggle to understand and stay current with the wide array of federal and state laws and regulations that apply to them. One of the most important considerations, however, is ensuring that employers and businesses comply with their obligations under federal civil rights laws, including the Americans with Disabilities Act (“ADA”) which prohibits discrimination on the basis of an individual’s disability. There are two primary sections of the ADA that may apply to cannabis businesses – Title I and Title III. We address each below, in reverse order.
Title III of the ADA requires that “places of public accommodation” and “commercial facilities” be accessible to persons with disabilities. “Places of public accommodation” include a broad array of facilities that are generally open, or provide services or goods, to the public. This includes hotels, restaurants, museums, schools, and health care offices, as well as sales or service “establishments” such as retail stores. “Commercial facilities” are defined broadly to include any non-residential facility “that affects commerce” including office buildings, factories, and warehouses – almost any type of commercial or business facility. This would include cultivation facilities and commercial kitchens, among others.
Title III mandates that all places of public accommodation and commercial facilities constructed after 1992, as well as any renovations/alterations made to those facilities as of 1992, are accessible to persons with disabilities. In general, the facility would be expected to have an accessible entrance or door, route to the entrance, parking, restrooms, signage, and other features. The specific accessibility standards to follow are found in the Americans with Disabilities Act Accessibility Guidelines (ADAAG). Architects and commercial builders should be very familiar with these requirements, as well as with additional accessibility standards found under state law such as the Maine Human Rights Act. Commercial facilities are also required to make accommodations to their practices and policies to accommodate individuals with disabilities, among other obligations.
In addition to Title III, businesses that have 15 or more employees must comply with Title I of the ADA. Title I of the ADA requires employers to provide reasonable accommodations, as well as policy modifications and auxiliary (communication) aids for employees with disabilities. These requirements apply to the client corporation, not simply a single facility owned or leased by the business. If the company employs more than 15 persons, then the Title I obligations apply and qualified employees with disabilities are to be accommodated in accordance with the Title I rules. Those rules, and the processes for providing appropriate workplace accommodations to an employee, can be difficult to navigate. Thus, we encourage businesses to work with experienced human resource professionals or legal counsel to ensure compliance.
While the above laws can pose challenges, with a little guidance, most employers and businesses successfully comply with the ADA and other civil rights laws without trouble. If you have any questions about how the ADA applies to your business, please do not hesitate to reach out to any member of our team.