New ADA Guidelines Will Affect Many Employers

In 1990, the ADA charged the U.S. Access Board-an independent executive agency-with responsibility for developing accessibility standards for public accommodations and commercial facilities constructed after Jan. 26, 1993, or altered after Jan. 26, 1992. A public accommodation is a privately owned entity that provides goods and services to the public and whose operations affect commerce. Restaurants, hotels, banks, theaters, convention centers, doctors' offices, retail stores, museums, day care centers, amusement parks, sports facilities and gyms are all public accommodations. A commercial facility under the ADA is a facility whose operations affect commerce that is intended for nonresidential use by a private entity. Examples of commercial facilities include office buildings, factories, plants and warehouses. The definition of a commercial facility encompasses most workplaces. Some workplaces, such as retail and restaurant operations, are both commercial facilities and public accommodations.

In 1991, the Access Board issued its first set of Americans With Disabilities Act Accessibility Guidelines (ADAAG), which the Department of Justice [DOJ] promptly incorporated into its ADA regulations.

First Comprehensive Revision

This year, on July 23, the access board issued its first comprehensive revision of the ADAAG since publishing the original ADAAG in 1991. See 69 Fed. Reg. 40,083 [July 23, 2004], www.access-board.gov/adaaba/Blue 9720HTML/ADAABA9620Guidelines9620Blue.htm. Among other things, the new ADAAG contains changes to the requirements for employee work areas that will affect many employers once these requirements are issued as regulations by DOJ.

Impact of Revised Guidelines

Many employers are not aware that Title III of the ADA may require them to make their workplaces accessible. And the newly issued ADA guidelines have toughened these accessibility requirements, making it more important than ever for employers to know what their obligations are, and to plan accordingly.

Under the ADA, all commercial facilities and public accommodations built after Jan. 26, 1993, must comply with ADAAG requirements unless it is structurally impracticable to do so. Public accommodations — but not commercial facilities — built before Jan. 26, 1993, are required to remove architectural barriers to the extent such removal is “readily achievable.” This is defined as “easily accomplishable and able to be carried out without much difficulty or expense.”

If a commercial facility or public accommodation built before Jan. 26, 1993, is altered, that alteration must comply with the ADAAG to the maximum extent feasible. In addition, if the alteration is to a “primary function area,” the path of travel to that area and the restrooms, water fountains and telephones serving that area must also be made to comply with the ADAAG, subject to some cost limitations.

Although the new ADAAG is not yet legally binding, employers that are in the process of designing and constructing new facilities or renovating their current facilities should nonetheless ensure that the work is done in light of the new ADAAG to avoid future problems. Although the new ADAAG standards will impose some additional cost over the current ADAAG, the cost is modest when compared with the cost of retrofitting a noncompliant facility. This situation could arise if an employer builds a facility that complies with the current ADAAG before the new ADAAG becomes law, and then makes alterations to that facility after the new ADAAG goes into effect. Those alterations would trigger certain obligations to comply with the new ADAAG that could involve expensive retrofits.

Employers in commercial facilities or public accommodations built before Jan. 26, 1993, that have not been altered since Jan. 26, 1992, should also be concerned about the new ADAAG because it will affect any future alterations they make to their facilities as well as their ongoing obligation to remove barriers to accessibility to the extent their facility is a public accommodation.

All employers, regardless of whether they are in existing facilities or are building new facilities, should know that complying with state and local building codes will not ensure compliance with the ADAAG, as the requirements are not necessarily the same. In developing the new ADAAG, the access board worked with model code drafters to conform the two sets of requirements-but it could be years before state and local governments adopt the latest version of the model code that contains the new ADAAG requirements.

The New Requirements

The new ADAAG contains a number of changes from the current ADAAG, and any employer that is involved in the design, construction or alteration of its facilities should take steps to make sure that these activities are performed in compliance with all ADAAG requirements. One of the changes that will affect employers concerns employee work areas. At its most basic level, the old ADAAG requires only that work areas, defined as “all or any portion of a space used only by employees and used only for work,” be on an accessible route so that workers with disabilities can approach, enter and exit the area.

The new ADAAG, however, contains a number of new accessibility requirements for employee work areas. For example, it requires that there be an accessible circulation path within work areas that are larger than 1000 square feet. In addition, the new guidelines require that work areas have visual alarms for hearing-impaired workers if audible alarms are provided, and that there be an accessible means of egress from the work area. Of these, the new circulation-path requirement may be the most challenging and expensive to implement. In addition to the existing requirement that there be an accessible route to the employee work area and a way for workers with disabilities to approach, enter and exit the area, there now must also be an accessible circulation path within the work area itself.

A circulation path is defined as a “way of passage provided for pedestrian travel” and includes walks, hallways, courtyards, elevators, platform lifts, ramps, stairways and landings. This passage must comply with extensive and detailed requirements-so extensive, in fact, that they take up a 30-page chapter of the new ADAAG. These requirements cover everything from the width of the path to wheelchair-maneuvering clearances, the speed at which a door closes, the maximum force required to open doors, the slope and cross slopes of paths and ramps, elevator features and handrails. The new requirements will lessen the space actually available for work areas.

Emerging Questions

One question that DOJ will have to address when it issues the regulations adopting these guidelines is when they will take effect. It is likely that the new ADAAG will apply to any facilities constructed or altered some time after the requirements are incorporated into DOJ's regulations. But the more difficult question is whether facilities that were built in compliance with the old ADAAG will have to comply with the new ADAAG, and if so, under what circumstances.

Another controversial question is how the new ADAAG will apply to public accommodations constructed before Jan. 26, 1993, that have not been altered. Although the ADAAG does not officially apply to these public accommodations, which only have a barrier-removal obligation, both DOJ and some courts have found the ADAAG standards to be highly relevant to determining whether a barrier exists. In its enforcement activities, DOJ has looked to the ADAAG as the starting point for identifying barriers, and then has asked whether the removal of such a barrier is readily achievable. If DOJ continues this practice, then the new ADAAG will effectively create more onerous standards for barrier removal for entities operating “existing” public accommodations.

Who Is on the Hook?

As far as employers go, only those who are involved in or have control over the design, construction or alteration of their facilities are obligated to comply with the ADA guidelines.

Although the majority of white-collar employers are not likely to fall in this category, there are a growing number of professional enterprises that do. Doctors, lawyers and architects, for example, often participate in the design, construction and/or alteration of their facilities. If a law firm buys a building and hires a contractor to renovate it, any renovation that affects or could affect the usability of the space will be considered an alteration that must comply with the ADAAG then in force to the maximum extent feasible-a standard that does not take into account cost.

In addition, if an alteration is made to a primary function area such as a reception area, that alteration will trigger other obligations in the ADAAG, such as providing an accessible path to the altered primary function area and making the restrooms, water fountains and telephones serving that area accessible, subject to some cost limitations.

Factory owners and manufacturers comprise another class of employers that has significant exposure under the new ADAAG. Manufacturers in particular are often highly involved in the design and construction of their facilities. Since most of these types of facilities are likely to have employee work areas in excess of 1000 square feet, the new ADAAG's circulation-path requirements will likely apply. There are a few exceptions to the general rule, and employers should determine whether these apply.

Hospitals and other large medical facilities, which typically have control over the construction or alteration of their facilities, also would be responsible for complying with these new employee work-area requirements. Hospitals have many areas that could be considered employee work areas, such as operating rooms, laboratories, nurses' stations and kitchens. The accessible circulation-path requirement may well apply, depending on the size of the employee work areas and on whether there are any specific exemptions.

Retail businesses, which generally are responsible for the construction of the internal layout of their facilities whether they own or lease them, also may find themselves having to make both their public and private spaces comply with the new ADAAG. This is especially true because retailers are more likely to renovate their stores to keep up with trends and thereby trigger the new requirements of the ADAAG through the periodic alterations process.

Employee Requests

Finally, the new ADAAG also has potential implications for employers faced with requests for accommodation from applicants or employees, as courts may look to the new standards as guidance for the level of accommodation that is reasonable. Before the new ADAAG was issued, a court would be more likely to find unreasonable an employee's request that an employer provide an accessible circulation path within the employee's department on the ground that the ADAAG imposed no such requirement – even for new construction. Under the new ADAAG, that same employee would have a much better case for the position that such a path is necessary and reasonable.

Conclusion

For employers, the new ADAAG has made the old ADAAG, already a voluminous and complicated set of regulations – even more rife with potential pitfalls, most of them yet to be discovered. While many employers understand their obligations under the old ADAAG, they now will find that the ground rules have changed. Employer, especially those already affected under the old regulatory regime, would do well to be proactive, examine the new guidelines and their implications, and monitor ADAAG-related developments from DOJ. This is so because, while ADAAG II may have taken nearly 15 years to evolve, it still is likely to be subject to years of further clarification and interpretation by the courts and DOJ that could have expensive consequences for the unprepared.

For nearly 15 years, the Americans With Disabilities Act of 1990 (ADA) has helped clear away barriers to public accommodations, employment, transportation, government services and telecommunications for disabled Americans. This landmark legislation granted long-overdue civil rights protections and equal opportunity guarantees to individuals with disabilities, just as earlier civil rights legislation addressed discrimination based on race, color, sex, national origin, religion or age.

While the ADA improved the lives of countless disabled individuals, it also created new challenges for many employers. And as of this summer, some employers will likely face an even tougher, more complex set of ADA accessibility guidelines, the impact of which is only beginning to be understood.

Accessibility

In 1990, the ADA charged the U.S. Access Board-an independent executive agency-with responsibility for developing accessibility standards for public accommodations and commercial facilities constructed after Jan. 26, 1993, or altered after Jan. 26, 1992. A public accommodation is a privately owned entity that provides goods and services to the public and whose operations affect commerce. Restaurants, hotels, banks, theaters, convention centers, doctors' offices, retail stores, museums, day care centers, amusement parks, sports facilities and gyms are all public accommodations. A commercial facility under the ADA is a facility whose operations affect commerce that is intended for nonresidential use by a private entity. Examples of commercial facilities include office buildings, factories, plants and warehouses. The definition of a commercial facility encompasses most workplaces. Some workplaces, such as retail and restaurant operations, are both commercial facilities and public accommodations.

In 1991, the Access Board issued its first set of Americans With Disabilities Act Accessibility Guidelines (ADAAG), which the Department of Justice [DOJ] promptly incorporated into its ADA regulations.

First Comprehensive Revision

This year, on July 23, the access board issued its first comprehensive revision of the ADAAG since publishing the original ADAAG in 1991. See 69 Fed. Reg. 40,083 [July 23, 2004], www.access-board.gov/adaaba/Blue 9720HTML/ADAABA9620Guidelines9620Blue.htm. Among other things, the new ADAAG contains changes to the requirements for employee work areas that will affect many employers once these requirements are issued as regulations by DOJ.

Impact of Revised Guidelines

Many employers are not aware that Title III of the ADA may require them to make their workplaces accessible. And the newly issued ADA guidelines have toughened these accessibility requirements, making it more important than ever for employers to know what their obligations are, and to plan accordingly.

Under the ADA, all commercial facilities and public accommodations built after Jan. 26, 1993, must comply with ADAAG requirements unless it is structurally impracticable to do so. Public accommodations — but not commercial facilities — built before Jan. 26, 1993, are required to remove architectural barriers to the extent such removal is “readily achievable.” This is defined as “easily accomplishable and able to be carried out without much difficulty or expense.”

If a commercial facility or public accommodation built before Jan. 26, 1993, is altered, that alteration must comply with the ADAAG to the maximum extent feasible. In addition, if the alteration is to a “primary function area,” the path of travel to that area and the restrooms, water fountains and telephones serving that area must also be made to comply with the ADAAG, subject to some cost limitations.

Although the new ADAAG is not yet legally binding, employers that are in the process of designing and constructing new facilities or renovating their current facilities should nonetheless ensure that the work is done in light of the new ADAAG to avoid future problems. Although the new ADAAG standards will impose some additional cost over the current ADAAG, the cost is modest when compared with the cost of retrofitting a noncompliant facility. This situation could arise if an employer builds a facility that complies with the current ADAAG before the new ADAAG becomes law, and then makes alterations to that facility after the new ADAAG goes into effect. Those alterations would trigger certain obligations to comply with the new ADAAG that could involve expensive retrofits.

Employers in commercial facilities or public accommodations built before Jan. 26, 1993, that have not been altered since Jan. 26, 1992, should also be concerned about the new ADAAG because it will affect any future alterations they make to their facilities as well as their ongoing obligation to remove barriers to accessibility to the extent their facility is a public accommodation.

All employers, regardless of whether they are in existing facilities or are building new facilities, should know that complying with state and local building codes will not ensure compliance with the ADAAG, as the requirements are not necessarily the same. In developing the new ADAAG, the access board worked with model code drafters to conform the two sets of requirements-but it could be years before state and local governments adopt the latest version of the model code that contains the new ADAAG requirements.

The New Requirements

The new ADAAG contains a number of changes from the current ADAAG, and any employer that is involved in the design, construction or alteration of its facilities should take steps to make sure that these activities are performed in compliance with all ADAAG requirements. One of the changes that will affect employers concerns employee work areas. At its most basic level, the old ADAAG requires only that work areas, defined as “all or any portion of a space used only by employees and used only for work,” be on an accessible route so that workers with disabilities can approach, enter and exit the area.

The new ADAAG, however, contains a number of new accessibility requirements for employee work areas. For example, it requires that there be an accessible circulation path within work areas that are larger than 1000 square feet. In addition, the new guidelines require that work areas have visual alarms for hearing-impaired workers if audible alarms are provided, and that there be an accessible means of egress from the work area. Of these, the new circulation-path requirement may be the most challenging and expensive to implement. In addition to the existing requirement that there be an accessible route to the employee work area and a way for workers with disabilities to approach, enter and exit the area, there now must also be an accessible circulation path within the work area itself.

A circulation path is defined as a “way of passage provided for pedestrian travel” and includes walks, hallways, courtyards, elevators, platform lifts, ramps, stairways and landings. This passage must comply with extensive and detailed requirements-so extensive, in fact, that they take up a 30-page chapter of the new ADAAG. These requirements cover everything from the width of the path to wheelchair-maneuvering clearances, the speed at which a door closes, the maximum force required to open doors, the slope and cross slopes of paths and ramps, elevator features and handrails. The new requirements will lessen the space actually available for work areas.

Emerging Questions

One question that DOJ will have to address when it issues the regulations adopting these guidelines is when they will take effect. It is likely that the new ADAAG will apply to any facilities constructed or altered some time after the requirements are incorporated into DOJ's regulations. But the more difficult question is whether facilities that were built in compliance with the old ADAAG will have to comply with the new ADAAG, and if so, under what circumstances.

Another controversial question is how the new ADAAG will apply to public accommodations constructed before Jan. 26, 1993, that have not been altered. Although the ADAAG does not officially apply to these public accommodations, which only have a barrier-removal obligation, both DOJ and some courts have found the ADAAG standards to be highly relevant to determining whether a barrier exists. In its enforcement activities, DOJ has looked to the ADAAG as the starting point for identifying barriers, and then has asked whether the removal of such a barrier is readily achievable. If DOJ continues this practice, then the new ADAAG will effectively create more onerous standards for barrier removal for entities operating “existing” public accommodations.

Who Is on the Hook?

As far as employers go, only those who are involved in or have control over the design, construction or alteration of their facilities are obligated to comply with the ADA guidelines.

Although the majority of white-collar employers are not likely to fall in this category, there are a growing number of professional enterprises that do. Doctors, lawyers and architects, for example, often participate in the design, construction and/or alteration of their facilities. If a law firm buys a building and hires a contractor to renovate it, any renovation that affects or could affect the usability of the space will be considered an alteration that must comply with the ADAAG then in force to the maximum extent feasible-a standard that does not take into account cost.

In addition, if an alteration is made to a primary function area such as a reception area, that alteration will trigger other obligations in the ADAAG, such as providing an accessible path to the altered primary function area and making the restrooms, water fountains and telephones serving that area accessible, subject to some cost limitations.

Factory owners and manufacturers comprise another class of employers that has significant exposure under the new ADAAG. Manufacturers in particular are often highly involved in the design and construction of their facilities. Since most of these types of facilities are likely to have employee work areas in excess of 1000 square feet, the new ADAAG's circulation-path requirements will likely apply. There are a few exceptions to the general rule, and employers should determine whether these apply.

Hospitals and other large medical facilities, which typically have control over the construction or alteration of their facilities, also would be responsible for complying with these new employee work-area requirements. Hospitals have many areas that could be considered employee work areas, such as operating rooms, laboratories, nurses' stations and kitchens. The accessible circulation-path requirement may well apply, depending on the size of the employee work areas and on whether there are any specific exemptions.

Retail businesses, which generally are responsible for the construction of the internal layout of their facilities whether they own or lease them, also may find themselves having to make both their public and private spaces comply with the new ADAAG. This is especially true because retailers are more likely to renovate their stores to keep up with trends and thereby trigger the new requirements of the ADAAG through the periodic alterations process.

Employee Requests

Finally, the new ADAAG also has potential implications for employers faced with requests for accommodation from applicants or employees, as courts may look to the new standards as guidance for the level of accommodation that is reasonable. Before the new ADAAG was issued, a court would be more likely to find unreasonable an employee's request that an employer provide an accessible circulation path within the employee's department on the ground that the ADAAG imposed no such requirement – even for new construction. Under the new ADAAG, that same employee would have a much better case for the position that such a path is necessary and reasonable.

Conclusion

For employers, the new ADAAG has made the old ADAAG, already a voluminous and complicated set of regulations – even more rife with potential pitfalls, most of them yet to be discovered. While many employers understand their obligations under the old ADAAG, they now will find that the ground rules have changed. Employer, especially those already affected under the old regulatory regime, would do well to be proactive, examine the new guidelines and their implications, and monitor ADAAG-related developments from DOJ. This is so because, while ADAAG II may have taken nearly 15 years to evolve, it still is likely to be subject to years of further clarification and interpretation by the courts and DOJ that could have expensive consequences for the unprepared.