The new Americans with Disabilities Act (“ADA”) standards (the “2010 Standards”), set to take effect on March 15, 2012, create new compliance obligations and contain technical specifications impacting what have become fixtures in most hotel lobbies or common areas: automatic teller machines (“ATMs”).  As is customary when new standards are set to take effect and become enforceable, hotels with existing ATMs want to know whether and how their ATMs will be impacted by the 2010 Standards and whether they will be afforded any safe harbor protections for compliance with currently effective requirements.  The answer, not surprisingly, is not a hard-and-fast rule, and any safe harbor protection will apply on an element-by-element basis.

It is helpful to view the 2010 Standards as separating the new requirements impacting ATMs into two categories – structural elements that impact the physical accessibility of ATMs and communication-related elements that relate to the customer’s interactive or communicative experience at ATMs. The Department of Justice (“DOJ”) has stated, specifically relating to ATMs, that structural elements are distinct from communication-related elements, and thus safe harbor protection would likely apply to those structural elements. This means that new requirements addressing height and reach, or accessible path and floor space, would be entitled to the safe harbor protection, and thus compliance with the currently applicable ADA 1991 Standards (the “1991 Standards”) is sufficient. Hotels should be aware, though, that any new alterations made to existing ATMs on or after March 15, 2012 means that they lose the safe harbor protection with respect to structural elements and must ensure that they comply with the 2010 Standards.

However, the DOJ takes a different approach with respect to communication-related elements of ATMs, which it defines as “auxiliary aids and services.”  While the DOJ has not provided a specific list of which new requirements would be considered “communication-related,” it is safe to assume that they would include requirements regarding voice guidance, speech output (including audible tones for security purposes and devices capable of providing audible balance inquiry information), and Braille instructions for initiating speech mode and features. The safe harbor will not apply to these communication-related elements, and only if hotels can meet the demanding threshold of showing that compliance with the new communication-related elements would impose an undue burden on them can they avoid making modifications. Accordingly, existing ATMs that comport only with the 1991 Standards must be modified or retrofitted to comply with the communication-related requirements contained in 2010 Standards by March 15, 2012.

The absence of an enumerated list providing which new requirements in the 2010 Standards are considered to be “communication-related” creates some confusion for hotels operating ATMs. While some elements are clearly communication-related, other components defy easy categorization, and, in turn, may create confusion for hotels as to their obligations. Because the DOJ and disability rights groups will likely initiate efforts to monitor compliance with and enforce the 2010 Standards, and in light of potential civil liability and hefty fines and penalties, hotels should assess their existing ATMs and take steps to comply. If, after a thorough assessment, there is any question or confusion about which ATM features are communication-related, hotels should consider them as such and should modify them to comply with the applicable 2010 Standards by March 15, 2012.