Most employers are familiar
with Title I of the Americans with Disabilities Act, which prohibits
discrimination in employment
against persons with disabilities. Less familiar to most employers
is Title III of the ADA. Title III requires that “places
of public accommodation” and “commercial facilities” be
designed, constructed or altered so that they are accessible
to the disabled. A “place of public accommodation” is
a privately owned business that provides commercial goods and
services to the public. Retail stores, hotels, restaurants, banks,
and service establishments are all public accommodations. “Commercial
facilities” are those intended for non-residential use
and whose operations affect commerce. Such facilities include
factories, warehouses, office buildings and most other workplaces.
Public accommodations and commercial facilities designed or
constructed after January 26, 1993, or altered after January
26, 1992, must comply with certain regulations published by the
Justice Department known as the ADA Architectural Guidelines
for Buildings and Facilities, or “ADAAG.” ADAAG sets
technical specifications for certain elements of a facility,
like entrances, paths of travel, bathrooms, primary function
areas, parking, and elevators. Additionally, ADAAG contains “scoping” standards
to specify how many accessibility features must be incorporated
and under what circumstances these features are required. For
instance, ADAAG requires that at least 50 percent of all public
entrances must be accessible. Full compliance with the ADAAG
standards for new buildings or altered areas is mandatory except
in limited cases where compliance is structurally impracticable,
disproportionately expensive, or, in the case of historic properties,
cannot be achieved without substantially impairing the facility’s
historic features.
The ADAAG standards were first issued in 1991. On July 23, 2004,
the U.S. Access Board, an independent executive agency charged
with developing ADA accessibility standards, issued comprehensive
changes to the ADAAG. While the changes have yet to be issued
as binding regulations by the Justice Department, business owners,
landlords, tenants, contractors and architects should all familiarize
themselves with the proposed revisions to the ADAAG, as well
as with their overall obligations under Title III of the ADA.
Title III Primer
Under Title III of the ADA, the degree of accessibility to a
covered facility depends on the date of the design and construction
of the facility. For example, places of public accommodations
(but not commercial facilities) built before January 26, 1993
are required only to remove architectural barriers to disabled
access where such removal is “readily achievable.” Whether
barrier removal is “readily achievable” depends on
the difficulty and cost of the barrier removal. That standard,
in turn, requires an analysis of all circumstances: the nature
of the changes; the covered entity’s type, size and financial
position; and any cost/benefit burden placed on the entity.
In the case of places of public accommodation and commercial
facilities built after January 26, 1993, such facilities must
be readily accessible to and usable by individual with disabilities
in full compliance with ADAAG standards, except where the requirements
are structurally impractical to meet. The “structurally
impracticable” exception is very narrow and will apply
to only certain terrain characteristics which prevent incorporating
accessibility standards. For example, constructing a building
on stilts over marshland and making it accessible to wheelchair
users may be “structurally impracticable.” Of course,
this does not prevent the facility from having other accessible
features. Wheelchair accessibility may be structurally impracticable
for a building built on stilts, but that does not relieve the
owner from designing the building to provide for access to individuals
using crutches or the sight and hearing impaired.
If a place of public accommodation or commercial facility built
before January 26, 1993 is altered, the alterations must comply
with the construction standards in ADAAG to the maximum extent
feasible. Alterations would include remodeling, renovation, reconstruction,
historic restoration, and changes or rearrangement of structural
parts or elements or in the configuration of walls. Excluded
from this definition are normal maintenance items, like painting,
rewiring electrical systems or asbestos removal, which do not
ordinarily affect a building’s usability. If the altered
area is an area of the facility that contains a “primary
function,” then the “path of travel” to that
area—that is, the passage by which the primary function
area is approached, entered and exited—as well as restrooms,
water fountains and telephones serving that area must be readily
accessible. A “primary function” is a major activity
of which the facility is intended. “Primary areas” would
include the dining area of a cafeteria, the meeting room in a
conference center, or the assembly and production room of a manufacturing
plant.
Many business owners who lease space—like retail tenants
in shopping malls—wrongly assume that the owner of the
property is solely responsible for ADA Title III compliance.
In truth, both the landlord and the tenant of a public accommodation
have full responsibility for complying with Title III. While
Title III does permit a landlord and tenant to allocate responsibility
in the lease for ADA compliance through, for example, indemnification
provisions, such allocation does not affect their liability under
the ADA. Furthermore, employers who are involved in or have control
over the design, construction or alteration of their facilities
may thereby become liable if the design, construction or alteration
does not comply with ADAAG requirements. For example, a manufacturer
who hires a contractor to build a facility according to the manufacturer’s
specifications will be liable under Title III if the contractor
fails to comply with ADAAG design and construction guidelines.
Proposed ADAAG Changes
The most significant change in the new ADAAG concerns employee
work areas. The existing guidelines require that for covered
facilities there must be an accessible route to an employee work
area which allows employees with disabilities to approach, enter
and exit the area. Disability advocates claimed that the current
ADAAG only gets a person with a disability to the door of a work
area and denies that person access through the work area and
to his or her assigned work station. To address that problem,
the new ADAAG guidelines require that there be an accessible
circulation route within work areas that are larger than 1,000
square feet. Among other things, the new ADAAG guidelines set
the required width for such routes, door-closing speeds, the
force required for opening doors, and the permissible slopes
of such circulation routes.
Under the existing ADAAG regulations, any newly constructed
facility or alteration to an existing facility that affects the
facility’s “primary area” must ensure that
the paths of travel to that area are readily accessible. Acknowledging
that many multi-use buildings may have multiple primary areas,
the new ADAAG clarifies that “primary” does not necessarily
mean “the one and only.” For example, a hospital
may have many primary areas, such as operating rooms, labs, and
nurses’ stations. For new construction or alterations to
a multi-use facility, the ADAAG rules require that all such areas
have accessible paths of travel and, depending on the size, circulation
routes as well. Changes to the restrooms, water fountains and
telephones serving those areas will also be required.
Business owners, landlords, and tenants—as well as the
contractors and architects they hire to design, build or renovate
their facilities—should review and incorporate the new
ADAAG changes in connection with their designs and construction
plans. The new ADAAG will, if nothing else, have an impact on
the usability of space that is being built or modified. Unless
the new ADAAG guidelines are considered and incorporated into
current design and construction plans, covered businesses may
face expensive alterations and retrofits to their facilities
once the ADAAG changes become law.
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