Excerpt from: Understanding the Americans with Disabilities Act (ADA) (click for full post)
Preventive tips: Basic preventive law before this decision would say that any time you hire someone to do a build out that will be in compliance with the Americans with Disabilities Act or to engage in ADA compliance efforts, that you would put in the contract an indemnification clause, much like the clause that Mandalay had in its contract. However, this decision calls into question as to whether such a clause would either be held to be preempted by the Americans with Disabilities Act or be held to be void against public policy. Assuming such an indemnification clause will fail, what is the company to do? A couple of possibilities include: hiring a person to independently double check the work of the contractor; or having your in-house counsel or other in-house personnel work with the contractor and any other consultants to ensure that the work/advice is done/given in the way that is supposed to be done/given. True, such a process increases the costs to the company. However, by doing so, it helps ensure that the company’s nondelegable duty is satisfied and also increases the probability that the Americans with Disabilities Act will be fully complied with.
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