Lately, we have received numerous questions about maintenance of accessible features under three conditions ordinary use of a space, during a renovation project, and if the 2010 ADA Accessibility Standards (2010 Standards) allows for a reduction in the number of accessible elements. The Americans with Disabilities Act Title III regulations provide for the following

28 CFR 36.211 Maintenance of accessible features

  • (a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
  • (b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.
  • (c) If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards.

The above section clearly indicates that if the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards then it is acceptable to reduce the number to that provided in the 2010 Standards. An example would be the reduction in accessible seating locations in larger arenas and venues. If a 30,000 seat arena was constructed in compliance with the 1991 Standards it was required to provide 301 accessible seating locations while if constructed under the 2010 Standard then 161 accessible seating location need to be provided. Thus, a venue constructed in compliance with the 1991 Standards having 301 accessible seating locations can now reduce that number to 161 keeping in mind that dispersion among various prices, amenities, and viewing locations must be provided.

The first two conditions – ordinary use of a space or during a renovation project – rely on the definition of temporary interruptions. Department of Justice, in their Technical Assistance Manual and in the regulatory analysis of the revised 2010 regulations offers us some guidance. One example is using an accessible route for storage of supplies would be a violation if it made the route inaccessible. However, an isolated instance of placement of an object on an accessible route would not be a violation, if the object is promptly removed. In the Explanation Section of the 2010 Regulations, DOJ states that restocking of shelves would be considered a “temporary interruption” that blocks an accessible route.

A renovation project of an existing facility that may block the only accessible entrance would violate this maintenance of accessible feature provision of the ADA if it was not a temporary interruption. While there is no case law on the concept of “temporary” it would not mean days on end and certainly not the life of the project. DOJ has provided the following guidance –allowing obstructions or out of service equipment to persist beyond a reasonable period of time or repeated mechanical failures due to improper or inadequate maintenance will violate the maintenance of accessible features provision of the ADA. Thus if the closure will be for a few hours that would be temporary if we start getting into days and weeks it would not be considered temporary. In this instance other means of access would need to be provided such as a temporary ramp or lift at another entrance.

Kleo King is an Attorney at Accessibility Services a program of United Spinal Association. Contact Kleo King at 718-803-3782, Ext. 7501 or kking@unitedspinal.org.