Tuesday, October 2, 2012

Does the ADA have a "Grandfather Clause?"

How many times have you gone to a restaurant or store that contained many barriers to your access and when you advised the business of these barriers you were told, "we're grandfathered in."  This is simply not true.  There is no grandfather clause in the ADA. 

To the contrary, 28 CFR 36.304 states: "A public accommodation shall remove architectural barriers in existing facilities...where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense."

However, while there never was a grandfather clause in the ADA and still is not, there is now a "safe harbor" brought about by the 2010 ADA Accessibility Guidelines that went into effect on March 15, 2012.  Basically, an existing facility that fully complies with the 1991 Guidelines that were in force until March 15th, 2012, is not required to comply with the 2010 Guidelines, except with regard to new areas of coverage not previously addressed in the 1991 Guidelines (such as swimming pools, amusement rides, golf facilities, etc).

In my opinion, this is most likely to affect wheelchair users in situations where an accessible single user toilet room compliant with Figure 28 of the 1991 Guidelines is provided as the only accessible toilet room.  In that configuration, only 18 inches is required between the center line of a water closet and the near edge of a lavatory such that parallel wheelchair transfer space is not provided and a diagonal transfer is often necessary as a result of having the lavatory so close to the water closet.  As many wheelchair users lack the ability to make a diagonal transfer, this has created a situation where the "accessible" toilet room provided is simply not usable by many wheelchair users.  The new 2010 Guidelines do not allow such a configuration for new construction and require at least 42 inches of clear space adjacent to a water closet which is measured from the center line of the water closet (and this is a lot more than a mere 18 inches!).  Regardless, an existing facility with a compliant Figure 28 toilet room would not be required to modify it to create parallel transfer space that complies with the 2010 Guidelines.

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