By Matthew M. Young, Esq.
March, 2011 or March, 2012? There has been significant confusion and varied opinions concerning the deadline for compliance with the Americans with Disabilities Act (ADA) new accessibility requirements for Automated Teller Machines (ATMs). Some industry experts suggest this deadline is not until March, 2012 while others indicate this deadline already passed and compliance was required as of March, 2011. The actual answer to this question is both dates are correct.
Two sections of federal regulation govern changes to ATMs in the next year. The structural elements requirement entitled “removal of barriers” governs, among other things, changes to height and reach requirements for ATMs. Under this section, elements of your existing ATMs that are not compliant with 1991 standards must be modified by March 15, 2012. Within this section, there is a safe harbor providing that elements that comply with the requirements as set forth in the 1991 standards do not need to be modified. However, this safe harbor only applies to the structural elements.
Speech enable requirements entitled, auxiliary aids and services, must have been compliant as of March 15, 2011. These auxiliary aids and services include all “speech enabled” functions including those that you referenced (voice guidance, blank screens for privacy and brail indicator for audio jack). Since no safe harbor exists under this section of the Code, the deadline was March 15, 2011.
To clarify this issue, the Department of Justice- the enforcer of the ADA- has weighed in noting:
The Department consistently has taken the position that the communication-related elements of ATMs are auxiliary aids and services, rather than structural elements. See 28 CFR part 36, app. B at 728 (2009). Thus, the safe harbor provision does not apply to these elements. The Department believes that the limitations on the effective communication requirements, which provide that a covered entity does not have to take measures that would result in a fundamental alteration of its program or would cause undue burdens, provide adequate protection to covered entities that operate ATMs.
Moreover, I contacted the Department of Justice seeking further clarification on this issue and they confirmed the Department’s position that the deadline for auxiliary aids and services is March 15, 2011.
If you have not met this March, 2011 deadline, do not panic. While the deadline for compliance with the “auxiliary aids and services” component has passed, the Department of Justice noted that many smaller financial institutions, and in particular Credit Unions, may have significant financial hardship with bringing all of its ATMs into compliance by that time. Accordingly, it is recommended by the Department to develop a compliance plan to meet these new requirements. If you have not already developed such a compliance plan you should do so immediately. Elements to consider include the following:
- Determine the number of existing ATMs at the Credit Union
- Determine if each of these ATMs meet 1991 ADA Standards and/or 2010 ADA Standards
- Get quotes from ATM providers to determine the cost to comply with these new requirements, as necessary
- Set a plan, budget and schedule to implement changes to your ATMs
The Credit Union’s budget and strategic plan should be reasonable in relation to the Credit Union’s size, the number of ATMs it has and the respective financial burden that the Credit Union bears for complying with the ADA’s new requirements. By developing and adhering to such a plan, which the Credit Union should revisit annually, the Credit Union lessens its exposure to liability with respect to complying with the ADA’s new requirements.