By Jonathan Faill
From the April 2023 Issue

The American with Disabilities Act (ADA) is part of a broad range of laws that fall under civil rights. Signed into law in 1992, with the most recent revision in 2010, the federal ADA or the related technical code has been adopted by states as part of their building codes. It’s important to note that since many states have adopted the technical codes, there may be conflicts between federal and state ADA regulations.

The enforcement of federal ADA is left up to the people via federal and state lawsuits and, in some instances, the Department of Justice or the Office of Civil Rights. In any case, you want to avoid lawsuits, mainly because of the extreme costs of litigation.

Typical Questions And ADA Assumptions

To help facility executives and managers learn more about ADA compliance and how to avoid future lawsuits, this article answers some of the most common ADA-related questions:

Q: My building was built before the ADA, so it’s grandfathered.

A: The ADA does not recognize any type of grandfathering. In fact, the ADA requires that building owners or leasees remove barriers to accessibility. This requirement is ongoing for both owners and leasees, and either one or both can be held liable for accessibility issues.

Q: My building is historical and we can’t do any modifications for ADA.

A: The ADA’s requirement to remove barriers to accessibility applies to historic buildings. Removing barriers may require more coordination between competing interests, such as historical codes, but nevertheless, you must remove barriers.

Q: My building had many barriers removed per the 1992 ADA, but now the 2010 ADA has changed the rules. Do I need to fix my fixes?

A: The ADA does have provisions called “safe harbors.”  If you comply to the older 1992 standard and the new standards require something different, you are safe harbored, meaning you don’t have to make any changes. Of course, if you alter the space (typically move walls in construction), you must meet the latest code.

An example of a safe harbor: In the 1992 code, the maximum height for forward reach was 54” above the finished floor. Under the 2010 code, this was lowered to a maximum height of 48” above the finished floor. Using this information, if the building that was built before 2010, a coat hook at 54” would be fully compliant. But, after 2010, it would be 6” too high; except, because it meets the 1992 code requirement, this coat hook at 54” would be safe harbored and would not need to be lowered.

Q: The ADA only applies to new construction, but my building was inspected when it was built.

A: The ADA does apply to new construction and to any alterations to existing construction. The ADA applies to every building and facility executives must remove barriers to accessibility. But, if these barriers have either been removed in the past or if the new code has changed the requirements, then the building may be safe harbored.

Q: Our new project on the third floor is fully ADA compliant, so I’ve met my ADA requirements.

A: Actually, maybe not. The ADA does require that “an alteration to a primary function area, you must provide an accessible path of travel from your entry points, including accessible parking, entry area, and path to the altered primary function area, including restrooms, drinking fountains, and other accessible elements.”  This additional path of travel work is capped at 20% of the cost of work at the primary function area (“disproportionate” rule).

What does this mean in laymen’s terms?  You are required to fix any ADA issues along the path of travel from your construction on the third floor to the accessible parking spaces outside. Did your design and construction team look at these issues? Typically not, as their contracts are to perform work that is limited to the specific scope under their contracts. So, who is responsible for this additional work?  Either the facility executive or building manager.

This work includes taking a close look at accessible parking, the path from the parking into the building, the building entrance, and any restrooms or drinking fountains along the way up to the new construction area. This may include other items, the “other accessible elements” part of the code, such as items like phones, room signs, elevators, protruding objects, the list goes on.

Q: What is this cap of 20% (“disproportionate” rule)? 

A: To keep this from being burdensome, this additional ADA work is capped at 20% of the primary construction costs. For small projects, you may hit this cap. For large capital construction, you may never hit the cap.

Q: Why should I be worried about this? My professional design and construction team got all the necessary permits and they don’t include this additional work.

A: This rule is NOT a building permit rule. It is part of the federal ADA code. Almost all building departments do not enforce this rule, it is enforced by private lawsuits in Federal District Court or in state courts. Plus, ignoring this rule, particularly if you have done multiple projects, would indicate deliberate and continuous defiance of a federal code and may subject you to damages. And the design team. And the construction team. Everyone involved, as a group or individually.

Q: Now I’m worried. What should I do?

A: First, you need to find out if you have any ADA deficiencies.  The simplest way is to hire a firm with ADA experience. Make sure they have experience with the type of building and business you have. You wouldn’t hire an auto mechanic to fix the heater in your house; you need the right person. Ask questions and get references.