If you turn down the lights, stare into a mirror, and say “grandfather clause” three times, a vengeful ADA consultant will appear behind you.
That’s a joke, of course, but many who work in accessibility likely wish cursed programs and haunted facilities on those who invoke the mythical grandfather clause to avoid making their public accommodations compliant under the Americans with Disabilities Act. Yes, mythical. Every industry has a dark spectre, a prevailing misconception about regulations that rears its ghastly head on an inconvenient (and sometimes daily) basis. It’s the huff of “Actually…” and the hiss of “Well, you see…” that howls through hollow halls of any specialist’s nightmares and, often, these apparitions don’t emerge as malicious spirits but rather misguided ghosts. For those in accessibility and ADA compliance, that familiar tinnitus is that programs and facilities can be grandfathered — when in fact, there is no grandfather clause under the Americans with Disabilities Act. To manage the transition between standards, the Americans with Disability Act has permitted safe-harboring. Wait, “safe-harboring”?
Before the screaming begins, let’s peel back the confusion on grandfathering, safe-harboring, and what is permitted under the ADA with these seven questions.
- What do “grandfathering” and “safe-harboring” mean?
Grandfather clauses, increasingly called “legacy clauses,” originated as a deeply-racist practice to suppress African American voters in the South and are now used to exempt certain people, places, or practices from a new rule usually as part of a logistical or legislative compromise. Technology, laws, and even buildings and codes frequently utilize grandfather clauses, which likely serve as the source of the myth regarding the Americans with Disabilities Act. However, its perpetuation probably stems from the misunderstanding about how the ADA is implemented. Despite having its own standards and codes, some of which were safe-harbored during the transition from the 1991 standards to the 2010 standards (we’ll get to that!), the Americans with Disabilities Act is ultimately a civil rights law rather than simply a building code or other regulation. It allows standards and codes to be enforced. Rather than a full exemption, safe-harboring refers to a practice in which certain conditions or situations are deemed acceptable despite a new ruling that changes the standards.
- What’s the difference?
The difference may seem a bit semantic, but there are key legal implications. A grandfather clause acts as a general exemption to a law while safe-harboring is more of an exception determined on an element-by-element basis and only applies to the standards, rather than the actual law itself. An example of this would be the changes in height for light switches. Under the 1991 Standards, the maximum height for all operable parts was 54 inches, however, under the 2010 the maximum height was lowered to 48 inches. Safe-harboring allows the light switches placed at 54 inches before the enforcement of the 2010 Standards to be considered acceptable. However, any structural alterations to those elements would require them to be brought into compliance with the 2010 standards. Elements that were not discussed in the 1991 Standards, such as boat docks, must comply with the 2010 Standards. As mentioned before, the law is what makes the Standards enforceable, not the other way around, so changes to the Standards do not affect whether or not an entity must comply with the law.
- What is considered an alteration?
Under the Americans with Disabilities Act, an “alteration” refers to any change that alters the usability of a room and is typically structural in nature. Basic maintenance, aesthetic updates such as painting or wallpaper, and other minor things that do not affect the path of travel or primary function are not considered alterations under the ADA.
- What is considered new construction?
New construction refers to all buildings whose first occupancy began on or after January 15, 1993 while compliance standards have additional deadlines. Compliance for the 1991 Standards applies to buildings constructed for first occupancy between January 15, 1993 and March 15, 2011, while compliance under the 2010 Standards refers to facilities constructed for first occupancy after March 15, 2012.
- My building was built before 2012, but never met compliance under the 1991 standards. Can it still be safe-harbored from the 2010 standards?
Nope. All elements that did not meet compliance under 1991 standards must be brought into compliance using the 2010 standards.
- Is a building ever exempt from the ADA?
Despite there not being a grandfather clause, there are a few exemptions to the Americans with Disabilities Act. The exemption of a building is determined by the exemption of the entity using the facility. There are only two exemptions to public accommodations under the ADA: religious institutions and private clubs, which are historically exempt from all civil rights laws in the United States. Once a building is operated by a Title II or Title III entity, it is then subject to compliance standards.
- Construction is expensive. What if I can’t afford to bring my building into compliance?
As mentioned before, the law is what makes the Standards enforceable, not the other way around, so changes to the Standards do not affect whether or not an entity must comply with the law. So how do you comply with the law when you can’t comply with the standards? Because entities face a variety of factors when bringing old construction into compliance, the Department of Justice allows entities to prioritize barrier removal that is “readily achievable” or easily accomplished without much difficulty or expense. This is still only prioritization rather than an exemption; so entities should document precisely why the barrier removal was not readily achievable, establish a timed plan to bring the barrier into compliance, and develop modifications to ensure access to goods and services despite noncompliance. For example, a shop without an accessible entrance might offer curbside pick-up to mitigate the undue burden of bringing an entrance into compliance. By thoroughly documenting how the barrier removal extends beyond their present capabilities alongside a timeline on which it will become achievable, litigation against the business becomes more difficult and less likely.
Fortunately, no catoptromancy or other spooky mirror-related summoning practices are necessary for calling on an ADA consultant to answer any other questions you have left. (We use technology now!) To reach Accessology for more information, call us at 972-434-0068 or connect with us on Facebook, LinkedIn, and Twitter to stay up-to-date on new information, training courses, and conference sessions. Happy Spring from your friends at Accessology!
