A new revision to the ADA became law recently. The new ABA-ADA guidelines and related regulations became effective July 26, 2011.
Businesses need to know two important deadlines for compliance. Starting March 15, 2011, businesses must comply with the ADA’s general nondiscrimination requirements, including provisions related to policies and procedures and effective communication.
The deadline for complying with the 2010 Standards, which detail the technical rules for building accessibility, is March 15, 2012. This delay in implementation was provided to allow businesses sufficient time to plan for implementing the new requirements for facilities.
In addition, hotels, motels, and inns have until March 15, 2012, to update their reservation policies and systems to make them fully accessible to people with disabilities.
For additional details, see ADA 2010 Revised Requirements: Effective Date/ Compliance Date at www.ada.gov/revised_effective_dates-2010.htm.
Element-by-Element Safe Harbor
If your business facility was built or altered in the past 20 years in compliance with the 1991 Standards, or you removed barriers to specific elements in compliance with those Standards, you do not have to make further modifications to those elements—even if the new standards have different requirements for them—to comply with the 2010 Standards.
This provision is applied on an element-by-element basis and is referred to as the “safe harbor.” The following examples illustrate how the safe harbor applies:
The 2010 Standards lower the mounting height for light switches and thermostats from 54 inches to 48 inches. If your light switches are already installed at 54 inches in compliance with the 1991 Standards, you are not required to lower them to 48 inches.
The 1991 Standards require one van accessible space for every eight accessible spaces. The 2010 Standards require one van accessible space for every six accessible spaces. If you have complied with the 1991 Standards, you are not required to add additional van accessible spaces to meet the 2010 Standards.
The 2010 Standards contain new requirements for the input, numeric, and function keys (e.g. “enter,” “clear,” and “correct”) on automatic teller machine (ATM) keypads. If an existing ATM complies with the 1991 Standards, no further modifications are required to the keypad.
If a business chooses to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies to those elements. For example, if you restripe your parking lot, which is considered an alteration, you will now have to meet the ratio of van accessible spaces 6 in the 2010 Standards. Similarly, if you relocate a fixed ATM, which is considered an alteration, you will now have to meet the keypad requirements in the 2010 Standards.
The revised ADA rules and the 2010 Standards contain new requirements for elements in existing facilities that were not addressed in the original 1991 Standards.
These include recreation facilities such as swimming pools; play areas, exercise machines, miniature golf facilities, and bowling alleys. Because these elements were not included in the 1991 Standards, they are not subject to the safe harbor.
Therefore, on or after March 15, 2012, public accommodations must remove architectural barriers to elements subject to the new requirements in the 2010 Standards when it is readily achievable to do so. For example, a hotel must determine whether it is readily achievable to make its swimming pool accessible to people with mobility disabilities by installing a lift or a ramp as specified in the 2010 Standards.
Readily Achievable Barrier Removal
As in the 1991 Standards, the new ADA requires that small businesses remove architectural barriers in existing facilities when it is “readily achievable” to do so. Readily achievable means “easily accomplishable without much difficulty or expense.”
This requirement is based on the size and resources of a business. So, businesses with more resources are expected to remove more barriers than businesses with fewer resources.
Readily achievable barrier removal may include providing an accessible route from a parking lot to the business’s entrance, installing an entrance ramp, widening a doorway, installing accessible door hardware, repositioning shelves, or moving tables, chairs, display racks, vending machines, or other furniture.
When removing barriers, businesses are required to comply with the Standards to the extent possible. For example, where there is not enough space to install a ramp with a slope that complies with the Standards, a business may install a ramp with a slightly steeper slope. However, any deviation from the Standards must not pose a significant safety risk.
Barrier Removal Before March 15, 2012
Businesses removing barriers before March 15, 2012, have the choice of using either the 1991 Standards or the 2010 Standards. You must use only one standard for removing barriers in an entire facility.
For example, you cannot choose the 1991 Standards for accessible routes and the 2010 Standards for restrooms. (See, ADA 2010 Revised Requirements: Effective Date/ Compliance Date at www.ada.gov/revised_effective_dates-2010.htm).
Remember that if an element complies with the 1991 Standards, a business is not required to make any changes to that element until such time as the business decides to alter that element.
Priorities for Barrier Removal
Understanding how customers arrive at and move through your business will go a long way in identifying existing barriers and setting priorities for their removal. Do people arrive on foot, by car, or by public transportation? Do you provide parking? How do customers enter and move about your business? The ADA regulations recommend the following priorities for barrier removal:
- Providing access to your business from public sidewalks, parking areas, and public transportation;
- Providing access to the goods and services your business offers;
- Providing access to public restrooms; and
- Removing barriers to other amenities offered to the public, such as drinking fountains.
Businesses should not wait until March 15, 2012 to identify existing barriers, but should begin now to evaluate their facilities and develop priorities for removing barriers. A thorough evaluation and barrier removal plan, developed in consultation with the disability community, can save time and resources.
In some instances, especially in older buildings, it may not be readily achievable to remove some architectural barriers. For example, a restaurant with several steps leading to its entrance may determine that it cannot afford to install a ramp or a lift.
In this situation, the restaurant must provide its services in another way if that is readily achievable, such as providing takeout service. Businesses should train staff on these alternatives and publicize them so customers with disabilities will know of their availability and how to access them.
New Construction and Alterations
The ADA requires that all new facilities built by public accommodations, including small businesses, must be accessible to and usable by people with disabilities. The 2010 Standards lay out accessibility design requirements for newly constructed and altered public accommodations and commercial facilities. Certain dates in the construction process determine which ADA standards—the 1991 Standards or the 2010 Standards—must be used.
If the last or final building permit application for a new construction or alterations project is certified before March 15, 2012, businesses may comply with either the 1991 or the 2010 Standards.
In jurisdictions where certification of permit applications is not required, businesses can also choose between the 1991 or 2010 Standards if their jurisdiction receives their permit application by March 15, 2012. Where no permits are required, businesses may comply with either the 1991 or 2010 Standards if physical construction starts before March 15, 2012.
When a small business undertakes an alteration to any of its facilities, it must, to the maximum extent feasible, make the alteration accessible. An alteration is defined as remodeling, renovating, rehabilitating, reconstructing, changing or rearranging structural parts or elements, changing or rearranging plan configuration of walls and full-height partitions, or making other changes that affect (or could affect) the usability of the facility.
Assessing Your Facility
The revised ADA regulations give businesses 18 months (until March 15, 2012) before they must comply with the 2010 Standards. The purpose of this phase-in period is to provide businesses sufficient time to plan and comply. Businesses are strongly encouraged to assess their facilities now to determine what architectural barriers exist. Until March 15, 2012, you have the choice of using the 1991 Standards or the 2010 Standards to remove architectural barriers, alter, or construct a new facility. Businesses that use the 1991 Standards during this phase-in period can take advantage of the safe harbor provision. Beginning March 15, 2012, only the 2010 Standards can be used.
Tax Credit and Deduction
To assist small businesses to comply with the ADA, the Internal Revenue Service (IRS) Code includes a Disabled Access Credit (Section 44) for businesses with 30 or fewer full-time employees or with total revenues of $1 million or less in the previous tax year.
Eligible expenses may include the cost of undertaking barrier removal and alterations to improve accessibility, providing sign-language interpreters, or making material available in accessible formats such as Braille, audiotape, or large print.
Section 190 of the IRS Code provides a tax deduction for businesses of all sizes for costs incurred in removing architectural barriers in existing facilities or alterations. The maximum deduction is $15,000 per year.
How to take advantage of the New Law
Kim Blackseth Interests Inc. can enhance your understanding of the Construction-Related Accessibility Standard Compliance Act; as a qualified CASp, Kim will assist you in obtaining a valid inspection and help you to achieve compliance with disability standards. We can also advise you about compliance with the American Disabilities Act and the California Unruh Civil Rights Act and the ways in which the risk of construction-related accessibility litigation can be managed and minimized so that you can make the best decision for your business about construction-related accessibility issues.
Kim Blackseth, ICC, ICBO, CASp, General Contractor