By Matthew M. Young, Esq.
Last year, I wrote an article on the Americans with Disability Act (ADA) Automated Teller Machines (ATM) Compliance deadline. At that time, there was confusion surrounding the accessibility requirements for ATMs. Was the deadline for compliance March 2011 or March 2012? Of course, that question is now moot as both deadlines have since passed. Despite the passing of this compliance deadline, confusion remains surrounding the new compliance standards – many credit unions are still not compliant with the new ADA requirements. If your credit union is among those out of compliance, there are several factors you should consider in moving toward compliance.
Much of the existing confusion relates to certain ATMs being exempted from the new requirement. Indeed, certain mobile ATMs may be excluded from these new ADA standards. If the ATM is not a fixture, meaning attached to the credit union’s building, the new standards may not apply to that ATM. I contacted the Department of Justice (DOJ), who enforces the ADA, to get clarification regarding the extent of an exemption from the new requirements. The DOJ advised that any ATM that is fixed to the floor is subject to the new ADA requirements. According to the DOJ, “If you were to turn your building over and the ATM would fall to the floor” it is not covered by the ADA’s requirements. So, if you have a mobile ATM that is bolted down, it is covered by the new requirements. Similarly, exterior ATMs that are within their own outbuildings would be subject to the new requirements.
As it relates to enforcement, the new regulations will be enforced by private right of action or in instances where a complaint is filed with the DOJ. In the near term, expect most enforcement to occur by private right of action. In fact, in Ohio, one visually impaired person has filed a lawsuit against a number of large financial institutions based upon purported violations of the ADA’s new requirements. In the instance where the DOJ receives a complaint, it will look to the reasonableness of a plan provided by a credit union that is not 100% compliant. “Reasonableness” is key. Asset size and the number of ATMs that need to be retrofitted/replaced will be considered. A court will likely consider similar factors when addressing lawsuits filed by consumers.
If you are not compliant but are putting a compliance plan together, you should prioritize which ATMs should be addressed first, considering the number of ATMs in a particular geographic area and the amount of traffic each ATM receives. Having zero compliance will likely not be reasonable. One exception relates to provider delay. For example, if your ATM provider is on a scheduling delay, that would be accounted for in the DOJ’s assessment. Ideally, your credit union is already compliant, however at a minimum, you must have a plan in place to get there. That way, if you are subject to claim by a consumer or the DOJ, you have a basis to defend the credit union.