The Application of the 2010 Standards
Since its inception in 1990, the purpose of the ADA has been based on a civil rights premise to provide a comprehensive national mandate for the elimination of discrimination against individuals with disabilities through clear, strong, consistent and enforceable standards.
The 2010 Standards apply to existing facilities, alterations, and new construction. The dates of several major events are triggered by the date when the 2010 Standards are published in the Federal Register. The 2010 Standards were ultimately published in the Federal Register on September 15, 2010 (the “Publication Date”).
Effective Date
The “effective date” of the 2010 Standards was March 15, 2011, six months after the Publication Date (the “Effective Date”). Eighteen months after the Publication Date, March 15, 2012, compliance with the 2010 Standards is required for new construction, alterations to existing facilities, and existing structures to the extent they must comply with their ongoing obligation for readily achievable barrier removal (the removal of inaccessible elements without much difficulty or expense).
Impact on Existing Facilities
An existing facility for purposes of the 2010 Standards is one that was already in existence on the September 15, 2010 Publication Date (“Existing Facilities”). Existing Facilities can avail themselves of an element-by-element safe harbor that is included in the 2010 Standards (the “Safe Harbor”). The Safe Harbor sets forth that specific elements in covered facilities that were built or altered in compliance with the initial 1991 Standards (the “1991 Standards”) (any time up to March 15, 2012, 18 months after the Publication Date) are not required to comply with the 2010 Standards until those elements are next altered. If an element does not comply with the 1991 Standards, the Safe Harbor is not available. Moreover, elements covered for the first time in the 2010 Standards (e.g., pools, spas, and playgrounds) are not eligible for the Safe Harbor.
Prior to March 15, 2012, Existing Facilities may choose to comply with either the 1991 Standards or the 2010 Standards. However, Existing Facilities may not “cherry-pick” between the two sets of Standards. Existing Facilities that are still non-compliant on March 15, 2012 are at risk and have no choice but to immediately modify any non-compliant elements pursuant to the 2010 Standards.
One other important note for Existing Facilities, to the extent any of the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required in the 1991 Standards, the technical requirements or the number of accessible elements in a facility may be reduced in accordance with the requirements of the 2010 Standards.
Impact on Alterations/New Construction
The obligations that must be met by facilities that are undergoing alterations or are being newly constructed depend upon the timing of specific triggering events set forth in the 2010 Standards.
- The 1991 Standards still apply if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government – or, in those jurisdictions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government – was before the September 15, 2010 Publication Date; or if no permit is required, the start of the physical construction or alterations (not including ceremonial groundbreaking or razing of structures prior to site preparation) occurred before the September 15, 2010 Publication Date; and
- The facility has the ability to choose whether to comply with either the 1991 Standards or the 2010 Standards if one of the aforementioned triggering events occurs after the September 15, 2010 Publication Date but prior to March 15, 2012; and
- The 2010 Standards must be followed if the triggering event occurs after March 15, 2012.
The Substance of the 2010 Standards
The 2010 Standards contain a vast array of new and revised rules. This Alert will first focus on several of the significant changes that will impact public accommodations across industries. The Alert will then highlight some of the most important changes that are more industry-specific.[3]
Significant Aspects of the 2010 Standards Affecting Multiple Industries
Employee-Only Work Areas & Circulation Paths: The current rules require an accessible path to approach, enter, and exit employee-only work areas. Pursuant to the 2010 Standards, public accommodations must not only ensure that employee-only work areas provide for an accessible path to approach, enter, and exit, but they must also provide a 36-inch wide accessible common use circulation path within employee work areas. (This requirement will not apply to Existing Facilities pursuant to the readily achievable barrier removal requirement.)
This requirement is subject to several exceptions; specifically, when employee work areas exist that are:
- (or have portions that are) less than 300 square feet and are elevated seven inches or more above the ground or finished floor, where elevation is essential to the functioning of the space;
- less than 1,000 square feet and are defined by permanently installed partitions, counters, casework, or furnishings (e.g., many kitchens in quick-service restaurants, the employee-side of service counters);
- an integral component of equipment (e.g., some power plants); and
- exterior and fully exposed to weather.
Machinery and equipment are permitted to reduce the clear width of common use circulation paths where the reduction is essential to the function of the work performed (e.g., machinery and equipment which must be placed in a certain way to work properly, for ergonomics, or for safety).
The 2010 Standards further explain that individual employee work stations (e.g., a grocery checkout counter) are designed for use by one person and do not contain common-use circulation paths and, therefore, are not required to provide an accessible common-use circulation path.
Service Animals: The definition of service animal set forth in the 1991 Standards has been significantly narrowed by the 2010 Standards to only include a dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability. Other animals, whether wild or domestic, are no longer considered service animals under the 2010 Standards. Trained miniature horses may be an exception to this rule in certain situations. An emotional support animal (any animal that provides emotional support, well-being, comfort, or companionship) is not to be considered a service animal. However, psychiatric service dogs are recognized; for example, a dog can be trained to “ground” a person with a psychiatric disorder.
Places of public accommodation may ask individuals seeking to be accompanied by a service animal: if the animal is required because of a disability and what the service animal has been trained to do. Places of public accommodation are prohibited from requiring proof of service animal certification or licensing. Places of public accommodation may remove a service animal if it is “out of control and the animal’s handler does not take effective action to control it” or the animal is not housebroken.
Mobility Devices: The 2010 Standards adopt a new two-tiered approach to mobility devices, drawing a distinction between wheelchairs (and other devices designed for use by individuals with mobility disabilities, e.g., canes, crutches, walkers) and “other power-driven mobility devices” (those not primarily designed for use by individuals with mobility disabilities, e.g., Segways). Wheelchairs (and other devices designed for use by people with mobility impairments) must be permitted in all areas open to pedestrian use. “Other power-driven mobility devices” must be permitted to be used unless the covered entity can demonstrate that such use would: (i) fundamentally alter its programs, services, or activities; (ii) create a direct threat to others; or (iii) conflict with legitimate safety requirements.
Places of public accommodation can request – and must accept – the presentation of a valid, state-issued disability placard or card, or state-issued proof of disability, as verification that an individual uses the other power-driven mobility device for his or her mobility disability. In the alternative, the place of public accommodation must accept a verbal representation, not contradicted by observable fact, as a credible assurance that the other power-driven mobility device is being used because of a mobility disability.
Industry-Specific Issues
The following section highlights aspects of the 2010 Standards that are of particular relevance to specific industries.[4] Sports and Entertainment Facilities and Other Places of Public Assembly
Scoping Requirements for Accessible Seating: The 2010 Standards significantly reduce the scoping requirements for accessible seating in large facilities, setting forth that: (i) facilities with 500-5000 seats must have six accessible seating locations (wheelchair location and companion seat) plus one additional accessible seating location for every additional 150 fixed seats above 500 in the general seating area; and (ii) facilities with 5001 or more fixed seats in the general seating area must have 36 accessible seating locations (wheelchair location and companion seat) plus one additional accessible seating location for every 200 fixed seats above 5000 in the general seating area. For larger facilities, this change amounts to almost a 50 percent reduction from the 1991 Standards’ "one percent plus one" requirement.
Accessible seating for luxury boxes, club boxes, and suites in arenas, stadium and grandstands are to be determined separately from the general seating areas. In other assembly areas (e.g., a performing arts facility with tiered boxes) such luxury seating areas will be accounted for as part of the scoping requirements for the general seating areas.
Dispersal of Accessible Seating Locations: Accessible seating locations must be dispersed horizontally (all around the field of play or performance area), vertically (at varying distances from the screen, performance area, playing field), throughout each balcony or mezzanine, and at all levels of the facility served by an accessible route (even if it is not the same route used by other guests to access the seating area). Moreover, the 2010 Standards explain that facilities are required to provide accessible seating locations in each “specialty seating area” that make available to patrons “distinct services or amenities” that generally are not available to other patrons. Where multiple clubs or restaurants are available that are identical in the services and amenities provided, not all such clubs are required to be made accessible.
Companion Seats: The 2010 Standards expressly allow for the use of movable companion seats which must be located at the same floor elevation as the wheelchair location.
Scoping Requirements for Designated Aisle Seats: The 2010 Standards require designated aisle seats be provided for five percent of the total number of aisle seats, instead of for one percent of all seats as required in the 1991 Standards. This should result in a notable reduction of the number of designated aisle seats required in most sports and entertainment facilities.
Release of accessible seating: The 2010 Standards allow venues to release unsold accessible seating for sale to individuals without a disability for their own use for a single event or series of events: (i) when all non-accessible tickets (excluding luxury boxes, club boxes, or suites) have been sold; (ii) when all non-accessible seats in a designated seating area have been sold and the tickets for the accessible seating area are being released in the same designated area; or (iii) when all non-accessible tickets in a designated price category have been sold and the tickets for the accessible seating are being released in the same price category.
Ticketing: Pursuant to the 2010 Standards, tickets for accessible seating locations must be available via the same methods as non-accessible seating (e.g., same hours, same stages of ticket sales offerings (e.g., lotteries, pre-sales, general sales, wait lists), same methods of distribution (e.g., box office, telephone, Internet), and same types and numbers). Venues must not only provide sufficient information to explain the locations, features, and amenities of accessible seating in sufficient detail for individuals with a disability to independently determine if an accessible seating location meets their needs, but must do so in the same manner that general seating information is provided to the public (e.g., telephones numbers, charts, maps, websites).
The 2010 Standards also require that tickets for accessible seating be made available “at all price levels for every event or series of events.” Further, if accessible seating is unavailable at a specific price point within a seating section, comparable or better available accessible seating must be offered at the same (or at a lesser) price as the originally requested tickets that were not available.
Prevention of Fraud: The 2010 Standards augment the ability of venues, in certain situations, to guard against the fraudulent purchase of tickets for accessible seating locations. For single-event tickets, the venue may inquire whether the individual purchasing the tickets for accessible seating has a mobility disability or a disability that requires the use of the accessible features that are provided in accessible seating (or whether someone else in the purchaser’s group has such a disability). For tickets to a series-of-events (e.g., season tickets) the venue may ask the individual purchasing the tickets for accessible seating to attest in writing that the accessible seating is for a person who has a mobility disability or a disability that requires the use of the accessible features that are provided in accessible seating.
Additionally, the 2010 Standards expressly recognize the legality of voluntary accessible ticketing clubs – whereby individuals with disabilities self-identify to obtain priority access to accessible seating. If a venue adopts such a program, a reasonable number of tickets to accessible seating must remain available for purchase at all prices and dispersed at all locations for individuals who are not members.
Accessible Routes to Tiered-Dining Areas in Sports Facilities: While the 2010 Standards ordinarily require that an accessible route be provided to all dining areas in new construction (including raised or sunken areas), there is an exception for tiered dining areas in sports facilities. Accessible routes must be provided to at least 25 percent of the tiered dining areas in sports facilities, provided that each tier provides the same services and an accessible route serves the accessible seating.
Hotels and Other Places of Lodging
Accessible Room Scoping: The 2010 Standards do not change the number of guest rooms that must be accessible to individuals with mobility disabilities or the number that must be accessible to persons who are deaf or hard of hearing.[5] At least one guest room with mobility features must now also provide communication features. Pursuant to the 2010 Standards, not more than 10 percent of the guest rooms required to provide mobility features and also equipped with communication features can be used to satisfy the minimum number of guest rooms required to provide communication features.
Dispersal of Accessible Rooms: Applicable to new construction and altered facilities, the 2010 Standards require that guest rooms with mobility features and guest rooms with communication features, “shall be dispersed among the various classes of guest rooms, and shall provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. When the minimum number of guest rooms required is not sufficient to allow for complete dispersion, guest rooms shall be dispersed in the following priority: guest room type, number of beds, and amenities.”
Reservations of Accessible Rooms: The 2010 Standards require that guests be able to reserve accessible rooms using the same methods (e.g., telephone and Internet) and during the same hours as guests reserving non-accessible rooms. Identification of accessible features in hotels and guest rooms must be offered through the hotel reservations services with sufficient detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets their accessibility needs.
Hold and Release of Accessible Hotel Rooms: In order to provide guests with disabilities equal opportunity to benefit from the services offered by the public accommodations the 2010 Standards require covered entities to hold accessible rooms for use by individuals with disabilities until all other guest rooms of that type have been reserved and the accessible room requested is the only remaining room of that type.
Upon request, covered entities are also required to reserve specific accessible guest rooms or specific types of accessible guest rooms and ensure that the accessible guest rooms requested are blocked and removed from all reservation systems (to eliminate double-bookings). When a public accommodation does guarantee hotel or other room reservations, it must provide the same guarantee for accessible guest rooms as it makes for other rooms, except that it must apply that guarantee to the specific room reserved and blocked, even if in other situations, its guarantee policy only ensures that a room of a specific type will be available at the specific price.
Retail Establishments
Self-Service Shelving and Display Cases: The 2010 Standards provide that self-service shelving (which shall be read broadly to apply to all types of shelves, racks, hooks, and similar self-service merchandising fittings, including self-service display units) are required to be on an accessible route but are not required to be located within accessible reach ranges. (Display cases are expressly excluded from this requirement.) Such fixtures are permitted to be installed above or below the reach ranges possible for many individuals with disabilities so that space available for merchandising is used as efficiently as possible.
Dressing, Fitting, and Locker Rooms: Where dressing, fitting, and locker rooms are provided in clusters, the 2010 Standards require that five percent of such rooms (but at least one room in each cluster) must be accessible.
The 2010 Standards also alter, and potentially increase, the footprint for dressing, fitting, and locker rooms that are new construction or undergoing alterations. Specifically, the 2010 Standards require the provision of clear floor space at the end (short-axis) of a bench instead of in front of a bench (as set forth in the 1991 Standards).
Sales and Service Counters: Pursuant to the 2010 Standards, facilities have the option of choosing whether their sales and service counters should be accessible via a forward approach or a parallel approach, with the exact technical requirements for accessibility depending upon which option is selected. In either configuration, the accessible portion of the counter must extend the same depth as the sales or service counter top.
An exception to these requirements is provided for alterations to sales and service counters in existing facilities where providing a longer accessible counter would result in a reduction of the number of existing counters at work stations.
Queues and Waiting Lines: Queues and waiting lines serving counters or check-out aisles must be accessible to individuals with disabilities.
Restaurants and Bars
Scoping Requirements for Accessible Seating: Pursuant to the 2010 Standards, restaurants and bars must now provide accessible seating (with accessible knee and toe clearances), located along an accessible route, equal to five percent of the total number of general seating spaces and standing spaces at dining surfaces. This standard will often require a greater number of accessible tables than under the 1991 Standards (which based scoping on the number of dining tables at an establishment).
Sales and Service Counters: See the Retail Establishments section above.
Queues and Waiting Lines: The 2010 Standards’ requirement that queues and waiting lines serving counters or check-out aisles must be accessible to individuals with disabilities includes those utilized for food service.
Academic Institutions
Definition of “Housing at a Place of Education”: The 2010 Standards define “housing at a place of education” as “housing operated by or on behalf of an elementary, secondary, undergraduate, or postgraduate school, or other place of education, including dormitories, suites, apartments, or other places of residence.”
Standards Applied to “Housing At a Place of Education”: The 2010 Standards continue to require housing at a place of education to comply with transient lodging standards for accessibility but, at the same time, add several additional accessibility requirements drawn from the residential facilities standards relating to accessible turning spaces, work surfaces in kitchens, and the accessible route throughout the unit.
Examinations and Courses Relating to Applications, Licensing, Certification, or Credentialing for Secondary or Postsecondary Education, Professional, or Trade Purposes: The 2010 Standards require that testing entities offer such examinations and courses in a place and a manner accessible to persons with disabilities or offer alternative accessible arrangements.
Language was also added to reflect DOJ’s position that, when testing entities receive documentation provided by a qualified professional who has made an individualized assessment of an applicant that supports the need for a requested modification, accommodation, or aid, the testing entity should generally accept such documentation and provide the accommodation in a timely fashion.
Conclusion
There can be little doubt that the issuance of the 2010 Standards will have a significant impact on most, if not all, public accommodations. It is, therefore, important that places of public accommodation use the next few months to assess and fully comprehend how these rules will impact the structural elements and policies, practices, and procedures of their facilities.
While the element-by-element Safe Harbor contained in the 2010 Standards provides compliant facilities with some level of comfort, the adoption of an element-by-element standard also makes the downside of non-compliance considerably worse. Not only will non-compliant elements ultimately need to be corrected under the 2010 Standards, but if the non-compliance is brought to light as part of a government investigation or private litigation, the standard may open the door for large-scale inspections of the entirety of the facility in question.
Places of public accommodation must always remember that – at its core – the ADA remains a civil rights law.
Now, perhaps more so than ever before, disability rights are a “front burner” issue. In this climate, it is crucial that places of public accommodation take great care to properly navigate their accessibility obligations.
Full copies of the 2010 Standards can be found at: www.ada.gov
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