The long-awaited, highly anticipated revisions to the federal accessibility design guidelines, last revised in 2004, may finally be moving toward closure. Businesses will be faced with the task of interpreting the information contained in the updated law to determine how the revised standards should be applied to new and existing facilities. Simply taking the time to read the guidelines would be sufficient; however, interpreting the breadth of the expanded regulations and the clarifications for existing regulations is a more significant task.
In the summer of 2008, the U.S. Department of Justice (DOJ) issued the notice of proposed rulemaking, asking for public comment on the 2004 ADA standards. The DOJ has since considered the public’s input; the Final Rule specifying the implementation date and adopted modifications will be unveiled once the Obama administration addresses the pending legislation.
Business/building owners, designers, contractors, and building officials, however, should become familiar with the proposed changes well in advance of that time, as the changes in the law for existing commercial facilities and public accommodations, as well as alterations to existing facilities and new construction projects, could be substantial. As a result, both small and large business owners across the board will need to address financial and legal considerations in preparation for the newly imposed ruling that will inherently be fraught with confusion relevant to the transition and application of the current and new law.
Safe Harbor Provision
The DOJ is considering incorporating a “safe harbor” provision, offering protection to businesses that have demonstrated a willingness to comply with the ADA law as it was previously written. This provision would grandfather in accessible elements in spite of the fact that the prior designs or upgrades would fall into noncompliance based on the new provisions. For example, a current regulation for people who require wheelchairs or who are of short stature establishes a maximum side reach of 54 inches – the new law reduces the maximum reach to 48 inches. This doesn’t consider the scenario where the height of the light switch last established at 54 inches might have to be lowered to 48 inches to conform to the new guidelines. In this case, if the safe harbor provision is approved, companies with vigilance regarding compliance would be allowed to maintain the height of 54 inches.
The safe harbor provision, however, isn’t without controversy; the DOJ is considering the opposition’s position in making a final determination on the proposed ruling. Unfortunately, if the provision isn’t implemented, that would mean bad news for businesses that have lived by the law in the past – they would be forced to repeat upgrades at a big expense.
There are certainly components of the proposed regulations that will have greater impact on commercial facilities and public accommodations in comparison to the current law. The new standards – affecting all businesses – address common areas, such as toilet rooms, reach ranges, circulation routes, and drinking fountains, with the maximum side reach regulation being one example.
It’s anticipated that toilet rooms will need to be larger. Currently required to accommodate a 60-inch turn area, the proposed standard will require that the lavatory be positioned outside the minimum 60-inch-wide clear floor space for the water closet. The net effect is that the toilet room, currently required to be 5-feet wide, would need to be expanded to 7 feet in width (pending the approval of the proposed modification).
While the current provisions require that employees have the ability to approach, enter, and exit work areas, the new standards call for more stringent requirements. They include details relevant to common-use circulation routes within work areas to meet the accessible route provisions, including a 36-inch minimum clearance, door-maneuverability areas, slopes and ramps, elevators, and lifts. There are exceptions to this provision, with security platforms and allowances for large equipment impeding the accessible route in employee areas serving as examples.
There is no change, however, proposed for common-use areas; these areas are currently (and proposed to be) fully accessible in employee areas.
Another new provision addresses signage for required exits. These new signs will require visual and tactile characters, including Braille; identifying specifics for finish/contrast; character heights; proportion details; and more. The signage will not be required to have accessibility symbols or pictograms, and can bypass mounting height and location provisions for signage utilized to designate permanent rooms and spaces.
The new standards will further impact laws that govern specific uses for everything from retail, restaurants, hotels/motels, shopping centers, and theme parks to employee areas, children’s destinations, and play and recreational areas.
Interaction with State Accessibility Laws
There are numerous states that have adopted the federal law and are currently using the ADAAG as a base design requirement; however, state law often goes beyond the incorporation of the federal design guidelines by imposing even more stringent standards with the addition of a number of accessibility requirements that exceed the federal mandates.
Expect confusion to be rampant among designers and building officials when the state laws have not yet been updated to be consistent with the new federal guidelines. For example, since the Florida Building Code’s accessibility chapter is incorporated into the state statutes, the state will be required to take legislative action to adopt the new federal regulations. In states where legislative action is needed to adopt the new ADAAG requirements, the process may not unfold quickly; as a result, facility designers and building code enforcement officials will find themselves in a difficult predicament. In the case where the new federal regulations might reduce the requirement for a particular accessibility feature, if a state’s accessibility guidelines call for a more stringent interpretation, the state law will rule. For example, the proposed federal regulations eliminate detectable warnings from curb ramps, but until Florida laws officially adopt the new federal standards, the detectable warnings on curb ramps will still be required.
Another example addresses the fact that, in single-user toilet rooms, the current regulations do not allow the door swing to interfere with the clear floor space necessary for accessible restroom fixtures, but the new regulations allow an overlap if there is a clear floor space provided outside the door swing. This provision has been adopted in the state of Texas as equivalent facilitation, meaning that the design provides the same or greater accessibility; however, the new exception may not be permitted in many areas of Florida until the state adopts the federal code, as many building officials frown upon the use of equivalent facilitation. There are countless additional examples that illustrate a disparity between the federal and state guidelines that will continue to create confusion until each state recertifies its code with the DOJ, ultimately officially adopting the revised federal guidelines.
How will these modifications affect restaurants, hotels and recreation facilities?
The current law governing accessible restaurant seating requires that 5 percent of fixed tables provide accessible elements, including clear floor space, knee/toe clearances, table-height requirements, and an accessible route to the table. As an example, a restaurant with up to 20 booths requires that at least one table has the accessible elements. Under the proposed changes, the minimum requirement of 5 percent of fixed tables has been upgraded to 5 percent of total seats. As a result, a 200-seat restaurant with 20 fixed tables is currently required to provide one accessible table, whereas the new standard will require a minimum of 10 accessible seats dispersed throughout the restaurant. Further, accessible routes must be provided to all accessible seats.
The new provisions will have a tremendous impact on requirements affecting guestrooms with communication features, including alarms, visual-notification devices for telephone calls, door knocks or bells, telephones with volume control, and specified outlet locations for the use of text telephones. Hoteliers will have to contend with proposed requirements that are significantly more stringent than what was previously acceptable. For example, in accordance with the current law, a new hotel with 310 to 400 rooms requires that at least eight guestrooms incorporate the above listed communications elements, while the new standards require that 20 rooms maintain these features.
As it pertains to small hotels, the law offers no leniency. Currently, the law states that hotels with 76 to 100 rooms require four rooms to incorporate communications features; the updated law will ask that nine rooms are in compliance. Additionally, the proposed dispersion of accessible rooms will broaden in scope to include views and bathroom hot tubs/spas in addition to the considerations for room size, type, cost, and amenities.
Hoteliers must also address another critical component of the proposed modification to regulations that outlines reservation policies designed to offer further protection for the disabled community. The DOJ is considering amending the law to add provisions that will ensure that guests are provided with specifics relevant to accessible accommodations, including not only a detailed description of the accessible guestroom, but specifics on accessibility features. These additional requirements include hotel chains that utilize centralized reservations systems, stipulating that the remote reservations employee must have detailed information available relevant to the specific hotel location’s guestroom and accessible features. The DOJ wants to ensure that disabled patrons are fully apprised as to the facility’s ability to serve the needs of the customer. The proposed changes will also require that the hotel staff share the company’s policy relevant to the guarantee of accessible room reservations. Also, under the proposed guidelines, the hotel company’s “hold and release” policy must be updated to reflect the company’s position on releasing accessible guestrooms to the general public prior to the hotel selling out.
Until now, accessibility standards concerning new recreation areas have been implemented on a voluntary basis. This may no longer be the case with the implementation of the proposed regulations for new recreational facilities, as adherence to accessibility design guidelines may now become mandatory. These areas include play areas, swimming pools, saunas and steam rooms, boating facilities, wading pools, golf courses, miniature golf facilities, fishing piers, and amusement rides. The DOJ is considering reducing the requirements for those existing facilities, although the extent of retrofitting requirements is yet to be determined by the DOJ’s Final Ruling.
AnneMarie “Bemmie” Eustace is director of site development for Orlando, FL-based Interplan LLC, and has followed the ADA law since its inception in 1990.