The Americans with Disabilities Act of 1990 and each of its subsequent updates has five main sections. Title I applies to employers, Title II applies to local and state government entities, Title III applies to private facilities and businesses offering commercial facilities and providing places of public accommodation, Title IV applies to telecommunications and common carriers, and Title V houses miscellaneous enforcement provisions and exemptions.
- Title III and Places of Public Accommodation
Title III, in particular, was developed out of section 504 of the Rehabilitation Act of 1973 and applies to facilities such as hotels, restaurants, bars, and theaters. The Act requires places of public accommodation not only provide accessible design, but in some cases—theaters specifically—the provision of auxiliary aids. Other requirements include the permission of services animals into the facility. In general, the ADA requires that public accommodations remove all physical barriers to access in their existing facilities to the extent it is readily achievable to do so. Modifications of any kind are typically in reference to removal or alteration of barriers preventing those with disabilities from access or use of the services and facilities.- New Constructions/Alterations vs. Existing Structures
Title III requires reasonable modifications when they are necessary to afford ready access to a facility to individuals with disabilities. No obligation to change any element that is presently compliant with the 1991 Standards arises until renovations or alterations occur. This requirement for new constructions or alterations holds facilities to a higher, more burdensome standard than existing facilities. Where alterations or renovations occur, unless the facility can show that making an accommodation would “fundamentally alter the nature” of the facilities, the facility is expected to comply and make the modifications to grant disabled individuals access. New constructions and alterations are required to be made in a manner providing access to disabled persons or providing such necessary accommodations unless the facility can show it would be “structurally impracticable” to do so.In terms of qualifying renovations and alterations that would require the facility then meet the latest 2012 ADA requirements, the statute defines “alteration” as “a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof.” Specific examples triggering the need to be compliant per the statute include (but are not limited to): (1) remodeling; (2) renovation; (3) rehabilitation; (4) reconstruction; (5) historic restoration; (6) changes or rearrangement in structural parts or elements; (7) and changes or rearrangement in the plan configuration of walls and full-height partitions. The statute also specifically provides that the following WILL NOT place a facility within the definition of alteration (and as such the facility will not be making itself subject to new 2012 requirements) : Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems unless they affect the usability of the building or facility.
Usability, per the statute, is interpreted liberally and as such will include renovations affecting the use of the facility, not just access to it. All alterations that could affect the usability of a facility must be made in an accessible manner to the “maximum extent feasible.” In an example set forth by the EEOC, if renovations are undertaken during the course of which a doorway is relocated, the new doorway must be wide enough to meet the new construction standard for accessibility. When alterations are made to a primary function area, such as the lobby of a bank or the dining and seating area of a cafeteria, an accessible path of travel to the altered area must also be provided.
Areas of a facility like bathrooms, telephones, and drinking fountains must also be made accessible. These additional alterations are only required to the extent that the added accessibility costs do not exceed 20% of the cost of the original alteration. When the cost of the alterations necessary to make the path of travel fully accessible is “disproportionate to the cost of the overall alteration, the path of travel should be made accessible to the extent that” it can be without incurring “disproportionate costs.” When a facility makes the decision of which accessible elements it will be able to provide in a cost-proportionate manner, priority is to be given to elements that will “provide the greatest access.” The general idea is that disabled persons should have ensure a path of travel to any altered area, whether it be a bathroom or a drinking fountain. The suggested order of priority, in terms of evaluating expenses, is the following:
- An accessible entrance;
- An accessible route to the altered area;
- At least one accessible restroom for each sex or a single unisex restroom;
- Accessible telephones;
- Accessible drinking fountains; and
- When possible, additional accessible elements such as parking, storage, and alarms.
- New Constructions/Alterations vs. Existing Structures
- The nature and cost of the action;
- The overall financial resources of the site or sites involved in the action;
- The number of persons employed at the site; the effect on expenses and resources;
- Legitimate safety requirements that are necessary for safe operation, including crime prevention measures;
- The impact otherwise of the action upon the operation of the site;
- The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
- The overall financial resources of any parent corporation or entity;
- The overall size of the parent-corporation or entity with respect to the number of its employees;
- The number, type, and location of its facilities; and
- If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
- Historic Preservation
The ADA provides standards for alterations to buildings and facilities that are eligible for listing in the National Register of Historic Places under the National Historic Preservation Act, or that are designated as historic under State or local law. Such facilities “shall comply to the maximum extent feasible.” If an owner/operator of a designated or registered facility determines that it is not feasible to provide physical access to such historic property “in a manner that will not threaten or destroy the historic significance of the building or the facility,” alternative methods of access need to be provided that give disabled persons access to an accessible entrance; an accessible route to a restroom, and access to least one accessible restroom. - Tax Benefits
There are two variations of tax benefits available to owners and operators of a public accommodation to offset the costs associated with ADA compliance. The first is an available deduction of up to $15,000.00 per year for expenses associated with the removal of architectural barriers. Additionally, “small businesses with gross receipts not exceeding $1 million,” or whose workforce is made up of 30 or less full-time employees, have the opportunity to claim a tax credit for “up to 50 percent of expenditures for removing” architectural and physical barriers exceeding $250.00, but not exceeding $10,250.00. - Dates and Corresponding ADA/Amendments for Compliance
Elements in existence between September 15 2010 and March 15, 2012, must comply, to the extent readily achievable, with either the 1991 standards or the 2010 standards. Elements in existence on or after March 15, 2012 must comply with the 2010 Standards. Elements of an existing facility not altered after March 15, 2012, must be in compliance with 1991 standards and do not need to be otherwise modified—this provision is known as the “safe harbor.” The safe harbor provision applies on an element-by-element basis, such that when an alteration or renovation is performed to one element or area, only that element/area will trigger the requirement to be compliant with the latest ADA requirements. It is important to note that the safe harbor provision for non-altered elements of an existing facility do not apply to, among other things, exercise machines and equipment; play areas; saunas and steam rooms; and swimming pools, wading pools, and spas. In terms of new construction and altered elements, those constructed or altered on or after January 26, 1993 and before September 15, 2010 are required to be compliant with the 1991 standards. Those constructed or altered on or after September 15, 2010 and before March 15, 2012 are required to be compliant with the 1991 standards or the 2010 standards. Those constructed or altered on or after March 15, 2012 are required to be compliant with the 2010 standards. The compliance date for the 2010 Standards for new construction and alterations is determined by either: (1) the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government; or (2) the date the last application for a building permit or permit extension is received by a State, county, or local government, where the government does not certify the completion of applications; or (3) the start of physical construction or alteration, if no permit is required. - Architectural and Transportation Barriers Compliance Board (ATBCB) Guidelines
The ATBCB develops guidelines for accessibility to public accommodations that are enforced “indirectly” through the regulations under Title III of the ADA. These guidelines are updated on a regular basis to include extremely detailed information regarding all facets of the construction—from the length and texture of carpeting to the particular dimensions for ramp installation ideal for toe and knee clearance of patrons in wheelchairs. Such detailed and up-to-date technical requirements for new constructions can be found at 36 CFR Part 1191, Appendix D to Part 1191. The main focus points of the ATBCB requirements are signaling methods indicating the location of the nearest accessible entrances (including font size and type for signs); dimension requirements for restrooms; and accessible sleeping accommodation percentage requirements. Specific measurements and other requirements for new constructions can also be found in 28 CFR part 36, subpart D; and the 2004 ADAAG at 36 CFR part 1191, appendices B and D. - Employee Work Areas
Employee work areas in new construction and alterations made to facilities are to be designed and constructed so that disabled persons can enter and exit such areas. The 2010 standards require “accessible common use circulation paths within employee work areas” unless a specific exemption is provided. This requirement is not applied to existing facilities, as the spirit of the1991 requirements had been interpreted to apply to customer and client access, not employee access. In terms of the specific exemptions for common use circulation paths in new construction and new alterations, the following are exempt from the requirement: (1) employee work areas/portions of that are less than 300 square feet and elevated 7 inches or more above the ground (where the elevation is essential to the function of the space); (2) employee work areas that are less than 1000 square feet and are defined by permanent partitions, counters, or other furnishings; (3) kitchens in “quick service” restaurants, cocktail bars, and the employee-side of service counters; (4) employee work areas that are “integral components of equipment,” like large pieces of equipment in plants, factories and amusement parks; and (5) exterior employee work areas fully exposed to weather (examples include outdoor maintenance facilities and farms).
In terms of multi-story facilities, elevators are generally not required in facilities under three stories or with fewer than 3000 square feet per floor, unless the building is a shopping center or mall; the professional office of a health care provider; a terminal, depot, or other public transit station; or an airport passenger terminal. The statute specifically addresses that the removal of physical barriers in unaltered, existing facilities, or those not undergoing any renovations need only be undertaken where removal is “readily achievable.” The language of the federal regulations states that this standard does not mandate barrier removal that requires extensive restructuring, burdensome expense, or significant loss of serving space. Only a specified number of elements such as parking spaces and drinking fountains must be made accessible in order for a facility to be “readily accessible.” Certain “non-occupiable” spaces such as elevator pits, elevator penthouses, ladders or very narrow passageways, places that are visited only by service personnel for maintenance, repair, or occasional monitoring of equipment, and piping or equipment catwalks need not be accessible.
The 1991 ADA provides an exception for these “non-occupiable” spaces that have limited means of access. Sections 203.4 and 203.5 of the 2010 Standards expand this exception by removing the condition that the exempt spaces be “non-occupiable,” and by separating the other conditions into two independent exceptions: one for spaces with limited means of access, and the other for machinery spaces. Existing facilities are not required to retrofit their structures to install elevators unless the installation is, again—readily achievable. Per the EEOC, the likelihood of this being a “readily achievable” alteration is unlikely in most cases. In terms of considering whether an alteration is readily achievable, the following factors are considered:
