New ADA Rules Would Revise Access Guidelines

By Kathy Gurchiek Jun 18, 2008
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New rules released by the Bush administration in the June 17, 2008, edition of the Federal Register would rewrite federal accessibility standards of the Americans with Disabilities Act (ADA) of 1990 and affect all state and local agencies and millions of businesses open to the public.

The proposals, which The New York Times has called “far reaching” and “sweeping,” would provide a newer version of the U.S. Department of Justice’s ADA Standards for Accessible Design.

The ADA protects the civil rights of more than 50 million people, including 5 million children ages 3 to 14, who have disabilities, according to the Justice Department.

Among other provisions, the new rules to Titles II and III of the ADA would:

  • Establish specific requirements for the design of accessible public facilities such as courtrooms and recreation facilities. That includes playgrounds, swimming pools, golf courses, boating facilities and amusement parks.
  • Provide for captioning of emergency announcements in large stadiums.
  • Require availability of auxiliary aids, such as video interpreting services, to make sure that persons who are hearing impaired can receive and convey vital information in medical and other settings.
  • Require making accessible seating available in public venues, such as theaters and sports stadiums, for persons with disabilities.
  • Make cells in detention and correctional facilities accessible.
  • Define service animals more narrowly to prohibit use of exotic animals such as monkeys.

Under the proposal, for example, “court facilities must provide an accessible route to a witness stand or attorney area and clear floor space to accommodate a wheelchair.”

The amendments provide a “safe harbor” for establishments that comply with current ADA standards, according to the Justice Department. For example, “retrofitting to meet new accessibility standards is not required unless the building element is being altered or replaced,” it noted.

“Most of the changes are not that sweeping,” said Dave Yanchulis, spokesman for the U.S. Access Board, which drafts the accessibility standards that, with the Justice Department’s approval, become part of the ADA Standards for Accessible Design.

“Many are incremental,” he told SHRM Online, while some areas would see “significant” changes.

The board updated its guidelines and revised some provisions to improve access or make compliance easier, he said, pointing out in a follow-up e-mail that the original guidelines required work areas to be accessible for approach, entry and exit but didn’t require access throughout the space.

The updated guidelines enhance access to employee work areas, such as calling for circulation paths to be accessible in sizeable work areas of 1,000 square feet or more.

The Access Board conducted an Initial Regulatory Impact Analysis of the proposed regulations on various businesses and other entities that can be found at http://www.ada.gov/NPRM2008/ria_supp.htm.

‘Enormous Financial Impact’

Burton Fishman, an attorney with Fortney & Scott in Washington, D.C., thinks the new proposals will have an “enormous financial impact on business, especially small businesses.”

Fishman, who has worked with Thompson Publishing Group on Thompson’s ADA Compliance Guide, called the new proposals a “pre-emptive use of the regulatory process” and questioned their need.

“There is nothing in the record … that creates the rationale for virtually any one of these [proposals],” he said. For example, “do we have use studies that require the expansion of van-accessible trucking spaces?

He also questioned the direction in which the proposed regulations are taking the ADA, observing that they appear “to be an attempt to fundamentally alter the ADA through the regulatory process by expanding the [ADA’s] reach” beyond accommodating the individual.

In the past, employers were required to create a level of accessibility if there was someone at the organization who needed it.

“Now you’re creating requirements in areas and spaces like work areas … even if no one needs it. I think the financial impact of this is rather staggering.”

The proposed regulations address a “broad number of issues,” noted Nancy Hammer, manager of regulatory and judicial affairs for the Society for Human Resource Management (SHRM).

“SHRM has long worked to promote employment opportunities for people with disabilities and supports the thrust of the regulation to improve access to businesses and other public places,” she stated.

SHRM is reviewing the proposals and plans to submit comments to the U.S. Justice Department, she said.

The proposed updated ADA rules can be found in the June 17, 2008, edition of the Federal Register at http://edocket.access.gpo.gov/2008/pdf/E8-12623.pdf and http://edocket.access.gpo.gov/2008/pdf/E8-12622.pdf.

Aug. 18, 2008, is the deadline for submitting comments to the proposed regulations.

See page 34509 in the Federal Register for e-mail and street addresses for submitting comments.

Kathy Gurchiek is associate editor for HR News. She can be reached at kgurchiek@shrm.org.

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