Schools, hospitals, universities and other facilities across the U.S. are under pressure to meet ADA-compliance standards by March 15, 2012. After this date, facilities that are not in compliance with the Justice Department’s 2010 revised ADA-regulations, risk financial penalties and possible legal action.
Recreation facilities–including fitness centers, swimming pools and sports centers– have been targeted as a new area of compliance, not previously covered in the 1991 regulations. Specifically, the 2010 regulations require ADA-accessible lockers and locks, swimming pools, exercise equipment and stadium seating to name a few.
Other changes in the 2010 regulations require increased handicapped van parking and accessible entrances, expanded vehicles for mobility assistance (golf carts are allowed!) and updated guidelines for ADA-accessible hospital rooms.
INSIDE THE LOCKER ROOM
Inside locker rooms, at least five percent of lockers must be accessible, according to 2010 compliance regulations. This means a wheelchair must be able to approach the locker, where benches typically block access. Specifically, clubs must allow 48 inches of space around the accessible lockers, and ensure that the bottom of lockers is no more than 15 inches off the floor.
However, “just making the lockers accessible is not enough,” says Julie Advocate, chief financial officer for Digilock, a Petaluma, CA, manufacturer of Celare lockers and Digilock locks. “Traditional locking options, such as padlocks, dial combination locks, and key locks are not ADA compliant,” she says.
“A locker, although ADA-compliant when purchased, becomes non-compliant when locked with a non-compliant lock,” Advocate says.
The ADA requires locks to be operable with one hand and not to require tight grasping, pinching or twisting of the wrist with a five-pound maximum operable force. Since the early 1990s, Digilock has been manufacturing ADA-compliant keys, and five years ago, the company incorporated an ADA-compliant user key into all of its keypad-operated locks to make all of its locking products compliant with ADA regulations.
Swimming pools, spas, wading pools, and aquatic recreational facilities must now become ADA-accessible. According to AquaSafe, a provider of swimming pool services, five types of entry are allowed under the regulation: primary – lifts and sloped entries; and secondary – transfer walls, transfer systems, and accessible pool stairs. The only means of entry that can be used on its own without any other means of entry is a sloped ramp.
Swimming pools with less than 300 linear feet of pool wall must have at least one primary means of entry – handicap lift or sloped entry. Swimming pools with more than 300 linear feet of pool wall must have two means of entry – at least one of them must be primary. The primary means of entry must be either a sloped entry or a pool lift capable of being independently operated by a person with a disability. The secondary means of entry can include a pool lift, a sloped entry, a transfer wall, a transfer system, or pool stairs.
The main requirements of pool lifts are that the user must be able to operate it independently, and it must provide foot rests. Sloped entries can be built in entryways, or can be a removable ramp, and they must have handrails. Sloped entries must be in compliance with all ADA specifications. The regulation specifies detailed requirements for secondary means of entry as well.
WHO HAS TO COMPLY
Not everyone has to fully meet the new requirements by March 15, 2012. Older facilities that are already in compliance with the 1991 standards, are not required to fully comply until they make alterations. However, if that older facility is not in compliance with 1991 standards, the deal is off, and they must come up to 2010 compliance, according to Karen Stephenson, a labor and employment attorney with Seyfarth & Shaw, specializing in ADA-compliance and accessibility matters.
Furthermore, facilities, renovating before March 15, 2012, can choose whether to redesign according to the regulations for 1991 or for 2010.
“But they have to decide throughout,” said Stephenson. “For example, they can’t choose to have their parking comply with 1991 regulations, and then something else goes with 2010 standards.”
She adds: “The thing to think about is the extent that there might be future alterations. If they’re going to be constructing now, they might just want to comply with 2010, so they don’t have to revisit and do things twice.”
While renovating facilities have a few months left to choose whether their reconstruction complies with 1991 or 2010 regulations, after the March date this choice vanishes. All will comply, at that point, with 2010 regs.
Another critical piece is the “Readily Achievable” statute. 1991-compliant spaces must bring their recreation facilities (which had no requirements in the 1991 regulations) to 2010 compliance, if it is “readily achievable.” According to the ADA’s regulation guidelines readily achievable means “easily accomplishable without much difficulty or expense.”
According to the published guidelines:
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.
The statute does take into consideration a business’ or facility’s financial capabilities:
Economic downturns may force many public accommodations to postpone removing some barriers. The barrier removal obligation is a continuing one and it is expected that a business will move forward with its barrier removal efforts when it rebounds from such downturns. For example, if a restaurant identified barriers under the 1991 Standards but did not remove them, because it could not afford the cost, the restaurant has a continuing obligation to remove these barriers when it has the financial resources to do so.
“This is something facilities will have to consult their counsel about, to see if they comply with this statute,” said Stephenson.
PENALTY FOR NON-COMPLIANCE
Out-of-compliance facilities risk penalties from the Department of Justice, and lawsuits from the DOJ, patrons or disability groups–not to mention risking their reputation in the community.
A first non-compliance violation is $55,000, and a second is $110,000, according to Stephenson, however, this may be the least of a non-compliant facilities worries.
“The DOJ does have the ability to bring class action law suits on behalf of individuals with disabilities, and if there’s a finding of liability in an issue like that, that could be a significant monetary burden on a facility, “ said Stephenson. “The DOJ can also get damages for people who are aggrieved and injunctive relief to force facilities to make required changes.”
Stephenson adds that there’s a number of plaintiff attorneys across the country that specialize in this area of the law, and seek out these lawsuits, including group claims.
In summary, Stephenson advises businesses to speak with their legal counsel to see if they are currently in compliance with existing standards, and if not, what changes must be made to come into compliance. Much of the specifics can also be found in the DOJ’s published guidelines.
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