New England Biz Law Update
Fifteen years after Congress passed the Americans with Disabilities Act, the first major revisions to the Act’s accessibility guidelines are making their way through the regulatory system and generating plenty of buzz.
“I don’t think most people have grasped the full impact of the changes yet,” said Minh N. Vu, an employment and disability law specialist at Epstein Becker & Green in Washington, D.C.
The Access Board, an independent federal agency with the responsibility for fashioning the guidelines, issued its final, 300-page proposal in July 2004. The Department of Justice issued an Advanced Notice of Proposed Rulemaking in October 2004, and the comment period ended May 31.
A DOJ spokesperson said the comments are being analyzed now. Once this process is completed, the Department will draft a Notice of Proposed Rulemaking and cost-benefit analysis and invite more comments.
The Board’s proposal suggests a wide number of changes, including new requirements for accessible parking, recreational facilities and hotel rooms.
According to spokesperson Dave Yanchulis, the final proposal was the result of a decade of work.
In 1994, the Board established a 22-member advisory committee, comprised of representatives from the design and construction industry, the building code community, state and local government entities and people with disabilities.
The committee reviewed the ADA accessibility guidelines and made recommendations for updating them to remain consistent with technological developments and changes in model codes and national standards.
The guidelines cover the construction and alteration of facilities in both the private sector (places of public accommodation and commercial facilities) and the public sector (state and local government facilities).
New guidelines will clearly have a far-reaching effect, said Vu.
Major Changes
A primary goal for the Board was to make the guidelines conform to industry standards and building codes, Yanchulis said.
Some changes attracted more comment than others. Here are some of the more controversial issues:
• ATMs
When the guidelines were first promulgated in the early 1990s, audio-capable ATM technology was relatively new, Yanchulis explained. The new proposal requires the use of this technology and sets forth detailed specifications for the machines.
“This is really breaking newer ground and greatly increasing access for people with vision impairment,” said Yanchulis.
While some banks – especially small, local institutions – have expressed cost concerns, Blanck said market forces will “change the banks’ tune.”
• Hotel Rooms
Currently, when a hotel makes alterations to its rooms, one out of 25 has to be disabled-accessible, up to the maximum number required (depending on schedules based on a variety of factors). Vu said the new proposal maintains the ratio, but now requires hotels to disperse their accessible rooms across different categories. This could be expensive for hotels, she explained, because of plumbing requirements.
“If you stack the accessible rooms from floor to floor, fewer retrofits will be required for the plumbing, reducing the cost,” Vu said. But if rooms at different places in the building – one ocean view room, one suite and one garden view room – require different plumbing, work gets much more complicated and expensive, she said.
• Recreational Facilities
Under the current regulations, while recreational facilities such as swimming pools and boating slips are covered entities, there is no standard that dictates specific requirements. The new proposal would change that, with specific standards for facilities including children’s playgrounds, gyms and golf courses.
An example of this, said Vu, “would be requirements for pools of a certain size to have at least two means of accessible entry,” such as a pool lift and/or a sloped entry. Saunas and steam rooms are also covered, which could pose problems because of their typically small size.
• Restrooms
The biggest change for restrooms would apply to “reach ranges,” or the height of things such as soap dispensers, hand dryers, garbage cans, coat hooks and storage shelves. Other changes include requirements for swing spaces for restroom doors and access space for urinals and stalls.
• Parking and Entrances
Currently, for every eight parking spaces, a covered entity must provide one van-accessible disabled space. The new rules would increase that number to one in six, a significant loss of space, Vu noted, as “vans take up a wider space.” In addition, buildings with two or more entrances must now make at least 50 percent of their entrances disabled-accessible. The proposed changes increase that percentage to 60 – meaning that a two-entrance building would have to make both entrances accessible.
• Employee Work Space
The proposed guidelines broaden the specifications for employee work areas, requiring that areas of 1,000 square feet or more have accessible circulation paths within them. In addition, employers must provide visual alarms for the safety of the hearing disabled.
Other proposed changes, which have been less controversial, would apply to sales and service counter access, signs, drinking fountains and storage facilities.
• Retail counters and changing rooms
Retail stores may be required to remove barriers if it’s “readily achievable” under the proposed rules changes, which essentially means doable without great expense.
“Under the current regulations, only one counter has to accessible, but under the new proposed regulations, for many retailers – there may be some exceptions – all those sales and service counters have to be accessible, which is a big difference,” according to Richard Miller of Vorys Sater in Ohio.
Miller said even though many retail establishments have already removed barriers in existing facilities as part of voluntary compliance or litigation, they may have to make even more modifications and renovations, according to Miller.
“The concern for those in retail community,” he said, “is whether there will be any safe harbor to insulate and protect them from new guidelines.”
Another concern, he said, is the proposed new guidelines require knee and toe clearance in the absence of a side approach to the area where customers pick up merchandise – commonly called cash wraps.
“That is a fairly significant variation from the old regulations,” Miller said. “If that is a requirement to barrier removal, there would be a fairly expensive amount of retrofitting and removal.”
The configuration of changing rooms may also be altered under the new guidelines, which could be particularly challenging for smaller stores, according to Miller.
“Arguably, the impact will especially hurt small, specialty retailers. To implement this new requirement, they will arguably lose selling space or at least inventory source storage space, which critical for smaller stores,” he said.
The new rules would require clear floor space at the end of an accessible bench to facilitate transfer, while under the current rules that space can be in front of the fitting room bench.
