New ADA Rules May Include Work Areas

May 20, 2005
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GRAND RAPIDS — Businesses have until May 31 to weigh in with the U.S. Department of Justice on proposed changes to the Americans with Disabilities Act Accessibility Guidelines — changes that could affect millions of businesses and possibly impose significant costs.

The DOJ is considering revisions to the current guidelines in response to new architectural standards set last summer by the Architectural and Transportation Barriers Compliance Board (ATBCB). The Disabilities Act requires that DOJ adopt accessibility standards “consistent with the minimum guidelines and requirements” issued by the ATBCB.

ADA Accessibility Guidelines cover construction and remodeling of facilities in both the private and public sectors, under Title II and Title III, respectively. But the accessibility guidelines generally mean a lot more to the private sector than they do to the public sector, said Jeffery S. Ammon, a member of Miller Johnson Snell & Cumminsky’s real estate and construction practice. 

“The private sector has to build new buildings in accordance with the guidelines and, in some cases, make existing modifications in accordance with the guidelines,” Ammon explained.  

The public sector is simply required to hold public meetings and deliver public programs and services in any place or space that is accessible. The public sector gets a huge break because they don’t necessarily have to modify their buildings to comply, he pointed out.

Proposed new ADA provisions would extend coverage of accessibility requirements to non-public areas, including office, factory and warehouse work areas. 

Revised guidelines would require barrier-free access for general circulation routes in all work areas, in addition to public areas. The provisions would be mandatory for all business facilities, regardless of whether the public is allowed access to those areas or whether the business employs any disabled people.

Ammon believes what the DOJ is trying to say is that if guests, visitors, or especially the public, pass through a work area, even escorted by somebody, then the rules ought to apply to those areas. 

“The big question is are we talking about buildings that are designed and built only after the guidelines go into effect or are we talking about existing buildings that now have to be changed to conform?

“Under the current system you have to take your existing building and change it to conform to new construction rules only if it’s feasible — if it’s not going to break your back — and that’s always been true. Congress was surprisingly sensible when it put this in place in 1993.”

Ammon said the “big shock” was really back in 1993 when the ADA regulations first came into being and everybody had to figure out what they had to do with their existing buildings to comply.

“Fast forward now 12 years later and we’ve got proposed new guidelines. I don’t get the sense that it has reached a level of a huge concern in the business community. I don’t know that there are that many changes in the guidelines that are all that dramatic.

“I’m just not hearing a whole of concern just yet. I think what will happen is that on the eve of new rules becoming effective, then all of a sudden people will say, ‘Wow,’ and they’ll ask all the same questions they were asking back in 1993.”

Since businesses are currently only required to provide access up to the employee work but not within it, the change “represents a major shift in the applicability of the ADA,” according to the Small Business Administration’s Office of Advocacy.

Since businesses are currently only required to provide access up to the employee work but not within it, the change “represents a major shift in the applicability of the ADA,” according to the Small Business Administration’s Office of Advocacy.

SBA’s Office of Advocacy has expressed concern about the financial impact of the new standards, particularly on small business.

SBA Assistant Chief Counsel Michael See said the most significant change for small businesses would likely be the requirement for wheel chair paths in employee work areas because it would require a change in floor space, floor grading, doorways, turning radiuses and even floor coverings.  

See said the office has heard compliance cost estimates ranging from $5,000 to $7,000 up into the five and six figures. As proposed, the changes have the potential to impact up to five million small businesses, he noted. 

The SBA has heard from a lot of small businesses that are seriously worried about the potential changes, See said. Although the DOJ is considering changes, he stressed that the agency hasn’t actually proposed a new rule yet.

The DOJ began the process of revising ADA accessibility rules by issuing an Advance Notice of Proposed Rulemaking late last September. The agency proposed three alternatives in the notice — including a safe harbor exemption — and invited public to submit written comments.

The agency is interested in hearing about projected cost impacts on businesses and has asked the public to identify types of facilities where application of the new standards would be unworkable.

Ammons said if the 1993 ADA experience was any indication, there should be a lot of give and take between the DOJ and the public. He expects the agency will get a lot of good, useful commentary out of the process and that that will drive some changes in the proposed rules.

The comment period was originally scheduled to close on January 28, but the agency extended it to May 31.

“We’re asking people to comment on the three alternatives the DOJ came up with,” said SBA Assistant Counsel See. “We believe these regulatory alternatives have the potential to reduce the burdens to small businesses and it’s up to small business to make sure the Department of Justice has in hand the information in hand that it needs to make a well thought out decision.”    

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