Your Right to Vote: Federal Laws Protecting the Right of People with Disabilities to Vote

The Department of Justice has issued new technical assistance with regard to the rights of voters with disabilities.   This assistance is intended to help election officials, poll workers and voters understand the requirements of the Americans with Disabilities Act, the Voting Rights Act, the National Voter Registration Act and the Help America Vote Act.  The publication is entitled, The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities.  Here are links to access this publication:  http://www.ada.gov/ada_voting/ada_voting_ta.pdf or http://www.ada.gov/ada_voting/ada_voting_ta.htm.  Topics include: accessible voter registration, accessible polling places, accessible voting systems, policies and procedures, and training.

Tired of Eating Over Your Lap (What Makes a Table Wheelchair Accessible)?

The criteria that define accessibility for a table are actually quite simple, but are often missed by restaurateurs.  These criteria can be found in the current ADA Accessibility Guidelines at Sections 226, 305, 306 and 902, which can be found here: 

http://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandards.htm#c4

In general, to determine the amount of accessible dining spaces, one must first determine the number of seating and standing dining spaces provided for consumption of food and drink.  Once that is determined, 5% of this number must be wheelchair accessible per Section 226.1.  Further, these accessible seating positions must be dispersed throughout the separate dining areas provided (i.e., interior, exterior, smoking, non-smoking, bar area, etc.).

What makes a seating position accessible?  The primary concerns are located in Sections 305 and 306 and consist of the following criteria:

a.  Clear Floor Space
b.  Knee Clearance
c.  Toe Clearance
d.  Height of the dining surface

Here is the diagram from 305.3 that is representative of the clear floor space necessary for wheelchair users.  Generally, a space 48" deep x 30" wide. 



The depth requirement is often overlooked. Depending on the configuration of the restaurant, this requirement may result in an otherwise accessible table lacking accessible seating positions due to the lack of clear floor space for restaurant staff and other patrons to pass by a dining wheelchair user at such a table.   Similarly, a wheelchair user may be unable to reach the table due to the lack of an accessible route to access it, which would also render that table inaccessible, regardless of its design.  Accessible route criteria can be found in Chapter 4 of the Standards (Sections 401-410).

Assuming one can gain access to a table, what makes it wheelchair accessible?  This is best revealed in the following diagrams from 306.2 and 306.3, respectively:

Toe Clearance:



Knee Clearance:



The criteria described in the foregoing diagrams can be distilled down to the following four (4) simple measurements that will apply to any standard dining table with a single center post supporting it:

1.  A minimum height of 27 inches of knee clearance measured from the bottom edge of the table top to the floor.

2.  A maximum height of 34 inches above the floor measured from the floor to the height of the dining surface (tablet top).

3.  A minimum depth of 17 inches measured from the edge of the center post out to the edge of the table top for wheelchair toe clearance.  Without this criteria being met, the wheelchair's foot rest will hit the first obstruction beneath the table (typically the center post) and the wheelchair user will be eating over his or her lap, or be forced to pull sideways to the table and eat while twisted to reach the table.  If you use a wheelchair and find yourself in this position, chances are the depth provided does not meet the current ADA standards for accessibility.

4.  A minimum unobstructed width 30 inches for the entire depth of knee and toe clearance required.  (If you use a wheelchair and have been seated at a booth at the end of the table, your knees and toes will have to fit between the booths.  Thus, the booths must be a minimum of 30 inches apart assuming the table is otherwise accessible).

The point to take away from this, if nothing else, is that just because the table is low (as opposed to those high top tables where people are seated at stools), does not mean the table is wheelchair accessible.  It must also be located on an accessible route, afford sufficient clear floor space for a 48" by 30" wheelchair to access the table and remain seated there without obstructing traffic, and provide the unobstructed width and depth necessary for a wheelchair user's knee and toe clearance.  Without this, wheelchair users are still eating over their laps.

Public Bathrooms Are Required in Alabama

Question:  Can an Alabama business avoid complying with the ADA's mandate to make readily achievable modifications to existing inaccessible toilet rooms, as necessary to make them wheelchair accessible, by designating the toilet rooms as for "Employees Only?"

Answer:  No. 

Alabama has adopted the International Plumbing Code (IPC). http://www.bc.state.al.us/buildingcode.htm

The IPC requires public toilet rooms in all structures and tenant spaces intended for public utilization--the only exception being parking garages:

403.3 Required public toilet facilities.
Customers, patrons and visitors shall be provided with public toilet facilities in structures and tenant spaces intended for public utilization. The number of plumbing fixtures located within the required toilet facilities shall be provided in accordance with Section 403 for all users. Employees shall be provided with toilet facilities in all occupancies. Employee toilet facilities shall be either separate or combined employee and public toilet facilities.

Exception: Public toilet facilities shall not be required in open or enclosed parking garages. Toilet facilities shall not be required in parking garages where there are no parking attendants.

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.

What does "Readily Achievable" mean?

A public accommodation in an existing facility (that is, a facility constructed prior to the effective date of the ADA and/or the current ADA Standards) is required to comply with those ADA Standards to the extent it is readily achievable to do so.   The regulations list many modifications that are typically readily achievable:

1) Installing ramps;
2) Making curb cuts in sidewalks and entrances;
3) Repositioning shelves;
4) Rearranging tables, chairs, vending machines, display racks, and other furniture;
5) Repositioning telephones;
6) Adding raised markings on elevator control buttons;
7) Installing flashing alarm lights;
8) Widening doors;
9) Installing offset hinges to widen doorways;
10) Eliminating a turnstile or providing an alternative accessible path;
11) Installing accessible door hardware;
12) Installing grab bars in toilet stalls;
13) Rearranging toilet partitions to increase maneuvering space;
14) Insulating lavatory pipes under sinks to prevent burns;
15) Installing a raised toilet seat;
16) Installing a full-length bathroom mirror;
17) Repositioning the paper towel dispenser in a bathroom;
18) Creating designated accessible parking spaces;
19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;
20) Removing high pile, low density carpeting; or
21) Installing vehicle hand controls.

"Readily achievable" means easily accomplishable and able to be carried out without much difficulty or expense.  It is a less stringent standard than that which applies to new construction (when access can be provided in the design for no greater expense).  According to the Technical Assistance manual promulgated by the Department of Justice (at III-4.4200):

Determining if barrier removal is readily achievable is necessarily a case-by-case judgment. Factors to consider include:

1) The nature and cost of the action;

2) The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;

3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

If the public accommodation is a facility that is owned or operated by a parent entity that conducts operations at many different sites, the public accommodation must consider the resources of both the local facility and the parent entity to determine if removal of a particular barrier is "readily achievable. " The administrative and fiscal relationship between the local facility and the parent entity must also be considered in evaluating what resources are available for any particular act of barrier removal.

Making Sense of New Simming Pool Regulations

The 2010 ADA Accessibility Guidelines (hereafter "Standards") include a requirement that all newly constructed or altered swimming pools subject to Title III of the ADA,  such as hotels and motels, health clubs, recreation centers, public country clubs, and other businesses that have swimming pools, wading pools, and spas, provide accessible means of entry.  These provisions have caused a lot of confusion insofar as existing swimming pools are concerned.  Intially, readily achievable modifications to comply with these provisions were due to be completed by March 15, 2012.  However, the Department of Justice has now extended that deadline until January 31, 2013. 

The 2010 Standards require a newly constructed or altered pool to have one, and in some cases two, accessible means of entry and exit. Section 242 provides that large pools (pools with 300 linear feet of pool wall or more) must have two accessible means of entry and exit. One means of entry/exit must be a fixed pool lift or sloped entry; the other entry can be a transfer wall, transfer system, or pool stairs. Small pools (pools with less than 300 linear feet of pool wall) must provide at least one accessible means of entry/exit, which must be either a fixed pool lift or a sloped entry.  Additional information can be found here about the accessibility requirements for newly constructed pools: 
http://www.ada.gov/qa_existingpools_titleIII.htm

Compliance with the new Standards in existing pools is only required to the extent it is readily achievable to do so.  My understanding is that the most cost-effective method of providing access is by providing a pool lift.  However, there has been confusion over whether that lift must be "fixed" or whether it may be "portable."  In order to allay concerns of business owners who attempted to comply with the guidelines and purchased portable lifts prior to March 15, 2012, these business owners will not be required to provide a fixed lift.  I understand that the Standards indicate lifts are required to be fixed.  However, what remains unclear to me is whether portable lifts that can be "fixed while in use" are sufficient, provided they are so fixed while the pools are open to the public.  This appears to be the standard that will be applied to businesses that purchased a portable lift prior to March 15, 2012.  Hopefully further clarification will be forthcoming soon. 

Tax Benefits of ADA Compliance

To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses. The tax credit is available to businesses that have total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as Braille, large print and audio tape; making available a sign language interpreter or a reader for customers or employees; and for purchasing certain adaptive equipment. The tax deduction is available to all businesses with a maximum deduction of $15,000 per year. The tax deduction can be claimed for expenses incurred in barrier removal and alterations. To learn more about the tax credit and tax deduction provisions, contact the DOJ ADA Information Line (at 800-514-0301 (voice); 800-514-0383 (TTY).