HOA Accommodations Under The Americans With Disabilities Act (ADA)
While the Fair Housing Act (FHA) has broader applicability, the Americans with Disabilities Act (ADA), codified under 42 U.S.C.A. §§ 12101 et seq., also significantly impacts homeowners associations (HOAs), particularly those with common areas accessible to the general public.
The ADA, enacted in 1990 and administered by the U.S. Department of Justice Civil Rights Division, forbids discrimination against individuals with disabilities in various sectors including employment, transportation, public accommodations, communications, and access to governmental programs and services.
For HOAs, the term \"public accommodations\" is most relevant. However, larger associations might also come under the jurisdiction of the ADA as employers. The ADA identifies twelve types of facilities that qualify as \"public accommodations\" (42 U.S.C. §§ 12181(7)), which commonly include homeowners' association facilities like pools, gyms, and golf courses.
HOAs operating facilities such as restaurants, bars, or daycare centers could potentially fall under ADA regulations. Crucially, to be considered a \"public accommodation\", the facility must be accessible to the general public, not just members. If, for example, only members can use the association pool, it does not qualify as a public accommodation, and hence the ADA is not applicable.
When an HOA constructs a new public accommodation, it must fully comply with the Americans With Disabilities Act Accessibility Guidelines published by the Department of Justice in the Federal Register. Pre-1992 facilities must undergo necessary modifications for compliance if such alterations can be executed without significant difficulty or expense (42 U.S.C. § 12182(b)(2)).
A \"disability,\" as defined by the ADA, includes any \"physical or mental impairment that substantially limits one or more major life activities\" (42 USC §12102). The EEOC lists conditions like deafness, blindness, mobility impairments, severe diseases, depression, bipolar disorder, and PTSD as examples of covered disabilities. Disorders associated with illegal or harmful conduct, such as kleptomania, pedophilia, and voyeurism, are not protected by the ADA.
Like the FHA, the ADA also covers service animals, but the scope is narrower – only dogs with specialized training qualify (28 CFR §35.104). If an HOA runs a restaurant and typically prohibits animals, it must modify its policy to accommodate a disabled person reliant on a service dog (28 CFR § 35.136(a)).
As an employer, an HOA falls under the ADA's purview if it employs 15 or more individuals (42 U.S.C. §12111(5)(A)). If the statute applies, the HOA cannot discriminate against any disabled person concerning employment (42 USC §12112(a)). Such discrimination could arise in decisions related to hiring, firing, promotion, or as a result of harassment or segregation.