DOJ Issues Final ADA Regulations for Public Accommodation and Initiates Rulemaking for Public Accommodation Websites and Equipment

In conjunction with the twentieth anniversary of the Americans with Disabilities Act (ADA), the U.S. Department of Justice unveiled several important regulatory actions this week that will impact all businesses that open their doors to the public, including places of retailers and restaurants. Persons who are involved in the design and construction of public accommodations facilities, as well as owners of such facilities, will also be affected by some of these regulatory actions. The actions include a Final Rule that revises the existing regulations for Title III of the ADA governing public accommodations and commercial facilities, and two Advanced Notices of Proposed Rulemaking (ANPRM) under Title III of the ADA covering public accommodation websites, equipment, and furniture.

Final Rule to Amend the ADA Title III Regulations

While the impact of this more than 100 page document and the related analysis and commentary will take time to digest, it is clear that compliance with the new rules will result in significant costs. The Final Rule takes effect six months after its publication date in the Federal Register (the “Effective Date”) and makes changes to the law in a number of key areas, some of which are discussed below.

Adoption of New ADA Standards for Accessible Design

The Final Rule incorporates a comprehensive set of new accessibility requirements for public accommodations facilities (the “2010 Standards”) which, with a few exceptions, mandate a higher level of access for individuals with disabilities than the standards issued in 1991 (the “1991 Standards”). The 2010 Standards contain significant changes to elements that were previously covered by the 1991 Standards such as single user toilet rooms, reach ranges, common use circulation paths in employee work areas, fitting rooms, accessible parking, public entrances, urinals, sales and service counters, and truncated domes. The Final Rule’s publication date in the Federal Register is expected any day now. The 2010 Standards take effect 18 months from the Final Rule’s publication date, which will likely be around January 2012 (the “Compliance Date”).

The Final Rule provides a safe harbor for elements in existing facilities that comply with the 1991 Standards as of the Compliance Date. These elements will not have to be changed until they are altered. Otherwise, all new construction, alterations, and barrier removal taking place after the Compliance Date will have to comply with the 2010 Standards. Covered entities that should have complied with the 1991 Standards during any new construction or alteration of facilities or elements but have not done so as of the Compliance Date will have to comply with the 2010 Standards. Public accommodations that have existing elements that are covered for the first time under the 2010 Standards will have to comply with the 2010 Standards for those elements to the extent it is readily achievable.

Owners, operators, landlords, developers, and designers of public accommodations facilities should review their existing facilities and any upcoming renovation or new construction projects in light of these new rules.

Service Animals

The Final Rule makes several significant changes to the service animal rules. The most notable change is that no animals other than dogs can be service animals. There is a narrow exception for the use of trained miniature horses in limited circumstances. The Final Rule clarifies what a public accommodation can ask a person who claims to be with a service animal, although this issue will be less critical now that the types of animals that must be accommodated has been limited to two species. The Final Rule also makes clear that animals that only provide emotional support or comfort to their owners are not service animals, although animals who perform tasks for people with mental disabilities (e.g., remind them to take medications, take action to alleviate the onset of a psychiatric episode) do qualify as service animals. Businesses that already have service animal policies should update them before the Effective Date to reflect these changes. Businesses with no service animal policies should seriously consider putting one in place to ensure that all employees comply with the law.

Power Mobility Devices

The Final Rule makes a distinction between wheelchairs which are designed for use by people with mobility disabilities (a term which encompasses motorized wheelchairs and scooters), and “other power-driven mobility devices” which are not specifically designed for people with mobility disabilities but can be used by such people for mobility (e.g., Segways, golf carts). Public accommodations must allow the use of wheelchairs in all areas open to pedestrian use. Public accommodations must also allow “other power-driven mobility devices” to be used in public accommodations facilities unless the facility can demonstrate that the use would fundamentally alter their programs, services, or activities, create a direct threat to others, or create a safety hazard. The burden is on the public accommodation seeking to limit the use of the “other power-driven mobility devices,” which means that any policies restricting the use of these devices must be carefully developed using facts specific to the public accommodation at issue. Businesses that are not willing to allow other power-driven mobility devices to be used in all areas of their facilities must develop a policy setting forth the limitations on their use and be able to justify those limitations.

Other changes

The Final Rule also makes changes to the rules relating to ticketing policies and public accommodations’ obligation to provide effective communication to individuals with disabilities.

Advanced Notice of Proposed Rulemaking for Websites, Equipment, and Furniture

In one ANPRM issued on July 26, 2010, the Department expressed its intent to issue regulations requiring websites of public accommodations to be accessible and posed 19 questions for public comment. The questions cover the accessibility standard that should be adopted, the difficulties with achieving certain accessibility goals, time frames for compliance, potential consequences of imposing website accessibility requirements, and the impact of imposing accessibility requirements on small entities.

In a second ANPRM issued on July 26, 2010, the Department expressed its intent to issue accessibility standards for, among other things, electronic information and technology equipment. The ANPRM poses 21 questions regarding these topics.

The regulations, when finalized, will have an especially dramatic impact on the retail industry, which has very complex websites and also furnishes electronic and technology equipment for customer use (e.g., point of sale devices and self-check-in and check-out machines).  The comment period for both ANPRMs is 180 days after the date of the ANPRM’s publication in the Federal Register.

For more information on these regulatory actions, please visit Seyfarth’s website or contact me directly.

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