Volume 40,   Issue 9                                  September  2005

Codes & Regulations

DOJ's Proposed Revisions of ADA
Laws Could Affect Small Businesses

The U.S. Department of Justice (DOJ) is currently considering revisions to the Americans with Disabilities Act (ADA) standards (the most recent version was issued in July 2004), which could have an economic impact for some small businesses.

The revisions were proposed by the Access Board, the federal agency that created the guidelines after the act was passed in 1990, and are currently being considered by the DOJ. If accepted, it would stand as “the first sweeping revision of the landmark civil rights law designed to make public facilities and employment more accessible to the disabled,” reported the Wall Street Journal. The revisions would apply to new construction only.

The changes, however, could be a concern for some small businesses, including some glass shops and retailers. In a letter dated February 4, 2005, to the DOJ’s assistant attorney general for Civil Rights, Alex Acosta, Thomas M. Sullivan, chief counsel, and Michael R. See, assistant chief counsel with the Office of Advocacy, U.S. Small Business Administration (Advocacy) said, “[We] believe the ADA revisions are likely to involve significant economic impacts on a substantial number of small business …” 

According to Advocacy, some of the issues raised in the rulemaking that pertain to numerous types of small businesses include a requirement that employee only areas be wheelchair accessible. The provision may apply regardless of whether the employer has ever had an employee in a wheelchair or is ever likely to. The requirement may also apply to locations not open to the public, such as manufacturing facilities.

“Advocacy believes a substantial number of small businesses may be economically affected by the employee work area provision,” wrote Sullivan and See in another letter to Acosta, this one dated May 23, 2005. “Census statistics compiled by Advocacy indicate that there are approximately 5 million firms employing 20 people or less. Since most of these firms were previously exempt from Title I reasonable accommodation requirements, any new employee work area requirements are likely to involve new expenditures.”

See and Sullivan said in their letter that they had been informed by manufacturing companies, not covered by the ADA rules until now, that requiring shop floors to be made accessible would cost significant amounts and put manufacturers at a competitive disadvantage to foreign manufacturers not required to incur such costs.

The Advocacy has recommended that the DOJ complete an initial regulatory flexibility analysis when it publishes the proposed rule revising ADA standards in the future. This, according to Advocacy, would explain to the public the costs the rule could impose on small businesses, as well as potential alternatives to the rules that would reduce or eliminate such costs.

According to Eric Holland, a spokesperson for the DOJ, the DOJ is currently analyzing the comments [regarding the ADA provisions] from the advanced notice that ended in May.

They will next draft a Notice of Proposed Rule Making and Order (NPRM) and cost benefit analysis which will be put on the ADA website for another comment period. No exact dates have yet been set for that. 

California Drops NFPA Building Codes; Adopts I-Codes
The California Building Standards Commission (CBSC) has rescinded an action from July 2003 to select the National Fire Protection Association (NFPA) 5000 as California’s model building code.
Donn Harter, president of the California Glass Association (CGA) said in reversing itself, the CBSC has adopted the International Codes (I-Codes), which include the International Building Code, the International Fire Code and the International Residential Code.
The CGA has been very active in its support of the I-Codes through letter-writing campaigns, personal appeals to legislators and writing articles in support of the I-Codes.
According to Harter, the task of adopting the IBC and its many amendments by different state agencies will probably take about two years. He said this means adoption of all changes through the 2003 and 2006 IBC would be published mid-2006.

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