Ed Zwilling March 18, 2016
I've been frequently asked about elevators recently. Not every new construction multi-story building is actually required to have an elevator by the ADA. There are certain exemptions for elevators. The regulation explaining where the ADA does NOT require elevators in new construction is located at 28 C.F.R. 36.401(d) (and is commonly referred to as the "elevator exemption"). In short an elevator is NOT required:
In a facility with less than three stories or which has less than 3000 square feet per story.
This exemption is not absolute and certain types of accommodations or services are nonetheless required to provide an elevator--even if they have less than three stories or less than 3000 square feet per story. There are a few types of facilities that would still be required to have an elevator, as follows:
1. A shopping center or shopping mall (provided sales and rental establishments are not limited to the ground floor only);
2. A professional office of a health care provider (provided such offices are not limited to the ground floor only);
3. A facility that houses a public transportation station, terminal or depot or an airport passenger terminal.
In existing facilities that do not have elevators, but would require them under the new construction guidelines of the ADA had they been constructed more recently, the question becomes whether it is readily achievable to provide an elevator. (See my blog entry entitled What does Readily Achivable" mean? if you don't already know).
Where it isn't readily achievable to provide an elevator, then the question becomes what reasonable accommodations can be afforded. For example, in a bar with a second floor performance stage, perhaps the stage could be relocated to the ground floor. Or, perhaps closed circuit television screens could be provided on the ground floor so that the show could still be seen (and not only heard) on the ground floor in cases where the ground floor lacked the necessary room for the stage.
In any event, just because a facility may be exempt from the requirement to provide an elevator does not mean that the facility is also exempt from other ADA requirements on upper floors. To the contrary, the elevator exemption specifically provides, "The elevator exemption set forth in this paragraph (d) does not obviate or limit, in any way the obligation to comply with the other accessibility requirements established in paragraph (a) of this section." In other words, but for the lack of an elevator, facilities with multiple stories that meet the elevator exemption, must still be designed and constructed to be readily accessible to and usable by individuals with disabilities in all other regards.