The United States Department of Justice (DOJ) recently published in the Federal Register final regulations (pdf) detailing new accessible design requirements for entities covered by the Americans with Disabilities Act (“ADA”) (pdf).
The 2010 Standards will have a significant impact on entities that are open to the public, i.e. entertainment venues, museums, recreational facilities, restaurants, places of lodging, medical facilities, and schools (public and private). Specifically, covered entities must account for not only issues pertaining to physical design, but website and other technological equipment designed for customer service.
The 2010 Standards are effective March 15, 2011, six months after their publication in the Federal Register. However, covered entities are not required to comply with the 2010 Standards until eighteen months after the publication date — March 15, 2012. From September 15, 2010 to March 14, 2010, covered entities may choose to follow in their entirety either the 1991 or the 2010 Standards. But, as of March 15, 2012, all renovations, alterations and new construction must conform to the 2010 Standards. The applicable standard will be triggered by the date a covered entity submits an application for a building permit or, if no permit is required, by the start of physical construction or alteration.
Selected Highlights of the 2010 Standards
1. Clarification of covered facilities
A hallmark of the 2010 Standards is that they provide clarification and in some instances incorporate more facilities than their 1991 predecessor. For example, the 2010 Standards clarify their application to, and requirement for, among others:
• amusement rides: must be accessible and located on an accessible route;
• recreational boating facilities: boat slips and boarding piers must be accessible;
• exercise machines and equipments: at least one type of every exercise equipment must be accessible and positioned to enable use by a person with a disability;
• fishing piers and platforms: must be accessible, subject to the same exceptions for gangways;
• golf facilities: accessible routes or golf car passages to the course, rental areas, bag drop areas and one or two teeing grounds;
• miniature golf courses: at least fifty percent of all holes must be accessible and consecutive;
• play areas: now covered and must have accessible ground and elevated play components, routes, ramps, transfer systems, and accessible ground surfaces;
• swimming pools, wading pools, and spas: must have accessible means of entry/exit;
• saunas and steam rooms: must be accessible with appropriate turning space and an accessible bench.
2. Safe Harbor Provision
If a covered entity has built or altered an element in its facility in order to comply with the 1991 Standards, then it does not have to comply with the 2010 Standards until such time that the element again becomes a part of a planned alteration/renovation.
Note: Existing facilities that were not subject to, or not in compliance with the 1991 Standards, do not benefit from the Safe Harbor Provision.
3. Reach Range Requirements
The side reach range requirements is now 15 to 48 inches. This range applies to operable parts on accessible elements, elements on accessible routes, rooms and spaces.
4. Employee Work Areas
Subject to certain exceptions, employers must ensure that an employee using a wheelchair have access to their work area, and other common use paths within employee work areas.
5. Service Animals
A service animal is a dog (minor exception permits use of miniature horse). The dog must be “individually trained to do work or perform tasks for the benefit of an individual with a disability” provided the “work or tasks performed by the service animal is directly related to the handler’s disability.” A dog that provides purely emotional support is not a service animal. However, individuals with mental disabilities who use dogs that are trained to perform a specific task are covered.
In addition, individuals accompanied by a service animal cannot be required to pay a surcharge for the service animal’s admission.
6. Reservations for Places of Lodging
Places of lodging must permit individuals with disabilities to make reservations for accessible guest rooms during the same hours and in the same manner as other guests; identify and describe accessible features in the hotels and guest rooms offered by their reservations services; and the accessible rooms must also be held for individuals with disabilities until all other guest rooms of that type have been rented. Accessible guest rooms must also be removed from all reservation systems to avoid inadvertent release to someone other than the person who reserved the room.
7. Timeshares, Condominium Hotels, and Other Places of Lodging
Timeshares and condominium properties that operate like hotels are subject to the 2010 Standards. These facilities are not subject to the reservation “hold back” requirement discussed above, nor the barrier removal and altercation requirements if the physical features of the respective room’s interiors are controlled by individual owners rather than by a third party operator. However, common areas in the overall facility containing the respective individually owned units must meet the 2010 Standards.
8. Assembly Areas
The scope of seating in large facilities has been altered such that under the 2010 Standards, facilities with 501 to 5000 seats must provide one additional wheelchair space for each additional 150 seats (or fraction thereof), and facilities with more than 5001 seats must provide one additional wheel chair space for each 200 seats over 5001.
9. Mobility Devices
A covered entity shall permit individuals using a manually powered aid (motorized and non-motorized wheelchair, walkers, crutches, canes etc) in any areas open to the public. The covered entity must also make reasonable modifications to permit access to individuals using other power-driven mobility devices (i.e. Segway®PT), unless the entity can demonstrate that the device cannot be safely operated in accordance with the regulation.
Note: A covered entity shall not ask an individual using a power-driven mobility device questions about the nature and extent of his/her disability. However, the entity may request proof that the motorized device is required, such as a valid state-issued disability placard, card or proof of disability, or “a verbal representation, not contradicted by observable fact.”
10. Water Closet Clearance in Single User Restrooms
The water closet must permit clearance for both a forward and a parallel approach, with further restrictions on the overlap of the lavatory and the water closet clearance.
Going forward, covered entities must audit their spaces and polices to ensure that they are in compliance with the 2010 Standards and/or maximizing the Safe Harbor Provisions. Nonetheless, although some entities will be able to operate under the 1991 Standards, be mindful that any future renovations, alterations or construction will require compliance with 2010 Standards. Finally, covered entities should retain documentation of all renovations and alterations conducted in an effort to conform with the 1991 and 2010 Standards.