From hotels, restaurants, retail stores, and service establishments of all types to sports arenas and entertainment venues, the Americans with Disabilities Act (“ADA”) has guided businesses on how to make their goods and services accessible to their disabled patrons and guests. “Public accommodations” covered by the ADA include, but are not limited to: hotels, restaurants, bars, theaters, gyms, stadiums, banks, retail establishments, museums, auditoriums, amusement parks, and service establishments like barber shops, pharmacies, and doctors’ offices. In light of the Department of Justice’s (“DOJ”) recent revisions to the ADA’s Standards for Accessible Design (“2010 Standards”) and the upcoming March 15, 2012 compliance date, now is a good time for businesses to seek guidance on their overall compliance with the ADA and with the new 2010 Standards in particular.

What are the new ADA 2010 Standards? To harmonize the ADA’s requirements with other federal standards as well as with model building codes, these 2010 Standards comprehensively reorganize and rewrite the 1991 ADA Accessibility Guidelines (“1991 Standards”). The 2010 Standards contain new or revised standards for hotel reservations, van accessible parking, maximum height for reach ranges, service animals, communication features for the hearing impaired in hotel guestrooms, location of accessible routes to stages, seating requirements in assembly areas, event ticketing requirements, and the use of mobility devices other than wheelchairs, among others. Additional significant changes relate to pool access and access to other recreational facilities. The specifics involved in these new requirements are discussed in more detail in the Appendix at the end of this article.

What if a facility was built before the 2010 Standards, is there an exemption? Facilities first occupied or renovated after March 15, 2012 (“New Construction”) must fully comply with the new 2010 Standards. The highest degree of accessibility is expected in New Construction. Any prior construction is considered to be an “Existing Facility.” Existing Facilities should comply with the 2010 Standards to the extent it is “readily achievable” to do so. However, the 2010 Standards provide a safe harbor for elements in Existing Facilities that are already in compliance with the 1991 Standards. Elements meeting the safe harbor are exempt from compliance with the 2010 Standards. Note that there is no safe harbor for elements not directly addressed in the 1991 Standards like pool access and other recreational facility standards. Those elements are required to be accessible in Existing Facilities to the extent such changes are “readily achievable.”

What is considered to be readily achievable? Readily achievable is defined in the ADA as “easily accomplishable and able to be carried out without much difficulty or expense.” This determination includes consideration of the following and is necessarily decided case by case:

  • Nature and cost of the action
  • The overall financial resources of the site (or its parent entity considering the geographic separateness and fiscal relationship of the site to any parent entity) including: the number of persons employed at the site or parent entity; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site
  • Other barriers removed
  • Significant loss of selling or servicing space
  • Fundamental alteration of the programs, services, benefits, activities, and goods provided

The Federal Access Board, an independent federal agency devoted to accessibility issues, succinctly explains that “existing facilities must achieve a level of usability that balances user needs, the constraints of existing conditions, and the resources available for remedial work.” Further, existing facilities should “do the best they can with what they have, a flexibility that permits needs to be balanced against available resources.”

The Department of Justice has published a list of modifications that may be readily achievable (depending on the circumstances of course). Please note that what is readily achievable for any given facility could vary greatly as all relevant factors are considered. Some examples are as follows:

  • Installing ramps
  • Making curb cuts in sidewalks and entrances
  • Rearranging tables, chairs, vending machines, display racks, and other furniture;
  • Widening doors
  • Installing accessible door hardware
  • Installing grab bars in toilet stalls
  • Rearranging toilet partitions to increase maneuvering space
  • Insulating lavatory pipes under sinks to prevent burns
  • Installing a raised toilet seat
  • Repositioning the paper towel dispenser in a bathroom
  • Creating designated accessible parking spaces
  • Installing an accessible paper cup dispenser at an existing inaccessible water fountain

Which accessibility features take priority? To help with balancing accessibility needs with costs, the Department of Justice has published the following accessibility priority list. While safety and communication features are not included in this list, they should also be a top consideration in most facilities.

  • First, individuals with disabilities must be able to physically enter the facility to enjoy the goods and services provided. Thus, a primary priority should be to ensure that parking and passenger drop off areas are accessible and that there is an accessible route from those areas, public sidewalks, and public transportation stops to the main entrance
  • Second, areas where goods and services are made available to the public should be made accessible. This may vary depending on the types of services or amenities available at the facility, but would include the route from the main entrance and the ability to use the various amenities, services or goods, in their order of significance to the facility
  • Third, accessible routes to and the ability to use restrooms
  • Fourth, public accommodations should consider the accessible route to and ability to use supporting features such as telephones, water fountains or other less significant amenities on the property

What if an accessibility issue is not listed in the 2010 Standards? Keep in mind that while these 2010 and 1991 Standards outline many accessibility issues, they are not conclusive as to all accessibility obligations under the ADA. In fact, the Department of Justice is already considering additional amendments to these Standards to keep up with current accessibility needs and recent cases regarding lack of required accessibility. These potential amendments address issues regarding the accessibility of the following:

  • Websites
  • Movie captioning
  • Medical examination equipment and furniture
  • Beds and telephones/communication devices in hotels, hospitals, and nursing homes
  • Golf cars
  • Exercise equipment
  • Electronic technology devices including kiosks, POS devices and ATMs

Stay tuned for further developments.

What should public accommodations do now? Since the inception of the ADA over 20 years ago, public accommodations have been tasked to take steps to provide equal access to all of the goods and services offered. Owners, operators, lessors, and lessees of public accommodations should use these new standards as a guidepost for all New Construction and should ensure that their policies and procedures are in line with the 2010 Standards. For Existing Facilities, the 2010 Standards should be a reminder to continue to assess how persons with disabilities can access all goods or services at the facility. Existing Facilities should consider available resources for barrier removal and other improvements which may be “readily achievable,” including an implementation plan designed to achieve compliance with the ADA.