In conjunction with the twentieth anniversary of the Americans with Disabilities Act (ADA), the U.S. Department of Justice unveiled several important regulatory actions this week that will impact all businesses that open their doors to the public, including places of lodging, retailers, medical facilities, restaurants, recreation facilities, and entertainment venues. Persons who are involved in the design and construction of public accommodations facilities, as well as owners of such facilities, will also be affected by some of these regulatory actions. The actions include a Final Rule that revises the existing regulations for Title III of the ADA governing public accommodations and commercial facilities, and two Advanced Notices of Proposed Rulemaking (ANPRM) under Title III of the ADA covering public accommodation websites, equipment, and furniture.
Final Rule to Amend the ADA Title III Regulations
While the impact of this more than 100 page document and the related analysis and commentary will take time to digest, it is clear that compliance with the new rules will result in significant costs. The Final Rule takes effect six months after its publication date in the Federal Register (the “Effective Date”) and makes changes to the law in a number of key areas, some of which are discussed below.
Adoption of New ADA Standards for Accessible Design
The Final Rule incorporates a comprehensive set of new accessibility requirements for public accommodations facilities (the “2010 Standards”) which, with a few exceptions, mandate a higher level of access for individuals with disabilities than the standards issued in 1991 (the “1991 Standards”). The 2010 Standards contain significant changes to elements that were previously covered by the 1991 Standards such as single user toilet rooms (including accessible guest room bathrooms), reach ranges, common use circulation paths in employee work areas, fitting rooms, dispersion of accessible guest rooms, accessible parking, places of assembly, public entrances, urinals, sales and service counters, and truncated domes. In addition, the Final Rule covers a number of new elements for the first time, including exercise facilities, fishing piers, golf and mini-golf courses, swimming pools, wading pools, spas, play areas, and saunas and steam rooms. The Final Rule’s publication date in the Federal Register is expected any day now. The 2010 Standards take effect 18 months from the Final Rule’s publication date, which will likely be around January 2012 (the “Compliance Date”).
The Final Rule provides a safe harbor for elements in existing facilities that comply with the 1991 Standards as of the Compliance Date. These elements will not have to be changed until they are altered. Otherwise, all new construction, alterations, and barrier removal taking place after the Compliance Date will have to comply with the 2010 Standards. Covered entities that should have complied with the 1991 Standards during any new construction or alteration of facilities or elements but have not done so as of the Compliance Date will have to comply with the 2010 Standards. Public accommodations that have existing elements that are covered for the first time under the 2010 Standards will have to comply with the 2010 Standards for those elements to the extent it is readily achievable.
Owners, operators, landlords, developers, and designers of public accommodations facilities should review their existing facilities and any upcoming renovation or new construction projects in light of these new rules.
The Final Rule makes several significant changes to the service animal rules. The most notable change is that no animals other than dogs can be service animals. There is a narrow exception for the use of trained miniature horses in limited circumstances. The Final Rule clarifies what a public accommodation can ask a person who claims to be with a service animal, although this issue will be less critical now that the types of animals that must be accommodated has been limited to two species. The Final Rule also makes clear that animals that only provide emotional support or comfort to their owners are not service animals, although animals who perform tasks for people with mental disabilities (e.g., remind them to take medications, take action to alleviate the onset of a psychiatric episode) do qualify as service animals. Businesses that already have service animal policies should update them before the Effective Date to reflect these changes. Businesses with no service animal policies should seriously consider putting one in place to ensure that all employees comply with the law.
Power Mobility Devices
The Final Rule makes a distinction between wheelchairs which are designed for use by people with mobility disabilities (a term which encompasses motorized wheelchairs and scooters), and “other power-driven mobility devices” which are not specifically designed for people with mobility disabilities but can be used by such people for mobility (e.g., Segways, golf carts). Public accommodations must allow the use of wheelchairs in all areas open to pedestrian use. Public accommodations must also allow “other power-driven mobility devices” to be used in public accommodations facilities unless the facility can demonstrate that the use would fundamentally alter their programs, services, or activities, create a direct threat to others, or create a safety hazard. The burden is on the public accommodation seeking to limit the use of the “other power-driven mobility devices,” which means that any policies restricting the use of these devices must be carefully developed using facts specific to the public accommodation at issue. Businesses that are not willing to allow other powerdriven mobility devices to be used in all areas of their facilities must develop a policy setting forth the limitations on their use and be able to justify those limitations.
Hotel Reservations Changes
To ensure that individuals with disabilities are able to reserve accessible guest rooms with the features that they need and that those rooms will in fact be available upon check-in, the new regulations contains a number of new requirements that will require significant changes most hotel companies’ existing reservations systems. Hotel reservations services will have 18 months from the Final Rule publication date to comply.
- First, reservations systems must identify the accessible features of the hotel and guest room. The Department declined to identify the specific information that must be provided in the regulation itself but its discussion in the accompanying commentary makes clear that, in many cases, more information about each hotel and its accessible rooms will have to be collected and included in the reservations system, including aspects of the hotel that are not accessible.
- Second, the new regulations require hotel reservations services to hold back the accessible rooms in each room type for use by a person with a disability until they are the last to sell.
- Third, the new regulations require that, once reserved, accessible rooms be blocked and removed from all reservations systems to eliminate the possibility of double booking.
Guest rooms that are owned and controlled by individual owners and only rented out for some portion of the time to the public are exempt from the “last sell” and blocking requirements stated above. Because of the amount of information gathering and system reconfiguration work that will be required to comply with these requirements, hotel companies need to immediately start assessing their current systems to determine what changes, if any, are required to comply with the new rules.
Condo-Hotels and Timeshares
The Final Rule considers facilities that consist of individually owned guest room units but have hotel-like amenities to be transient lodging facilities. However, the Final Rule states that guest rooms in existing lodging facilities that are not owned by the entity that owns, leases, or operates the overall facility and whose interior physical features are controlled by their individual owners are not subject to the alterations or barrier removal requirements of the ADA, which means that the owners are not required to make their units accessible. The areas that are owned by the entity that owns, leases, or operates the overall facility are covered by the ADA. In addition, the Final Rule states that in designing and constructing these types of facilities, the number of accessible guestrooms to be provided must be based on the total number of rooms that are constructed with the intention that they can be used for either residential or transient lodging purposes.
The Final Rule also makes changes to the rules relating to ticketing policies and public accommodations’ obligation to provide effective communication to individuals with disabilities.
Advanced Notice of Proposed Rulemaking for Websites, Equipment, and Furniture
In one ANPRM issued on July 26, 2010, the Department expressed its intent to issue regulations requiring websites of public accommodations to be accessible and posed 19 questions for public comment. The questions cover the accessibility standard that should be adopted, the difficulties with achieving certain accessibility goals, time frames for compliance, potential consequences of imposing website accessibility requirements, and the impact of imposing accessibility requirements on small entities.
In a second ANPRM issued on July 26, 2010, the Department expressed its intent to issue accessibility standards for medical equipment, electronic information and technology equipment, exercise equipment, golf cars, beds, and furniture. The ANPRM poses 21 questions regarding these topics.
The regulations, when finalized, will have an especially dramatic impact on the retail, hospitality, banking, and healthcare industries which all have very complex websites and also furnish electronic and technology equipment for customer use (e.g., self-check in and check-out machines, ticketing machines, and point of sale devices). The comment period for both ANPRMs is 180 days after the date of the ANPRM’s publication in the Federal Register.