2010 ADA and Safe Harbor

New construction and alterations that are currently occurring may be constructed in accordance with the 1991 or the 2010 Standards, but this transitional phase will be ending shortly.  If the building permit application is received on or after March 15, 2012 or if a permit is not required construction starts on or after this date, the 2010 ADA Standards will be mandated.  Start of construction does require more than razing of existing structures or a ceremonial groundbreaking.

It is important to note that when the new standards take effect, buildings that were constructed prior to the March 15, 2012 deadline and in accordance with the 1991 Standards do not need to be brought up to the 2010 Standards.  For example, the 1991 Standards allows for a side approach to a water fountain but in the 2010 Standards for adults only front approaches are permissible.  If the water fountain was installed or permitted, prior to the March 15 deadline, with a side approach, this will be considered as compliant under the Safe Harbors provisions of the 2010 ADA Standards.

"If a private entity has constructed or altered required elements of a path of travel at a place of public accommodation or commercial facility in accordance with the specifications in the 1991 Standards, the private entity is not required to retrofit such elements to reflect the incremental changes in the 2010 Standards solely because of an alteration to a primary function area served by that path of travel."     36.403 (a) 2

"If existing elements, spaces, or common areas are altered, then each such altered element, space, or area shall comply with the applicable provisions of appendix A to this part."     36.402 (b) 2

The 2010 Standards require access for facilities that did not have access requirements under the 1991 Standards, such as recreation facilities.  Since there were no standards for the additional facility types under the previous ADAAG regulations, these are not considered as having been constructed in accordance with them.  Therefore, they are not protected under the 2010 Standards Safe Harbor provisions, and the architectural barriers must be removed when readily achievable.

As the 2010 Standards are generally more restrictive than the 1991 Standards, it could be valuable for many businesses to have an ADA Compliance Audit performed soon.  There are two benefits for this.  First, the business will have paperwork documenting that they were evaluated by a third party professional company to be in compliance with 1991 ADA Standards.  With the ADA being a Civil Rights law rather than a building code, this documentation may provide greater protection.  The second benefit would be, providing the business an opportunity to decide to perform the necessary modifications under the 1991 ADA standards.