JUL 2 1 1993

The Honorable Charles E. Grassley United States Senate 135 Hart Senate Office Building Washington, D.C. 20510-1501 Dear Senator Grassley: This letter is in response to your inquiry on behalf of your constituent, the Maytag Company, which inquired about the application of the Americans with Disabilities Act (ADA) to washing machines. We apologize for any inconvenience caused by the delay in answering your constituent's request for a policy interpretation. Your constituent's letter asked several questions about the applicability of the ADA to washing machines. It asked whether washing machines must comply with reach range requirements found in the Standards for Accessible Design (the "Standards"), and, if so, how many washing machines must meet those requirements. It also asked whether requirements found in the Standards may be waived if assistive devices are provided on request. Third, it asked whether the Standards require Braille lettering on laundry and vending equipment. Finally, it asked which accessibility standards may be used by university dormitories. These questions raise complex issues under the ADA and necessitate this unusually long and detailed response. I have enclosed five documents that are referred to in the discussion below: the Americans with Disabilities Act Accessibility Guidelines (ADAAG) and its preamble, issued by the Architectural and Transportation Barriers ompliance Board (ATBCB) (these guidelines were adopted by the Department of Justice as the Standards); the regulation promulgated by the Department of Justice under title III of the ADA, which includes the Standards; the regulation promulgated by the Department of Justice under title II of the ADA; the Uniform Federal cc: Records, Chrono, Wodatch, McDowney, Bowen, Novich, FOIA, MAF Udd:Novich:Congress:Grassley 01-02444​ -2-

Accessibility Standards (UFAS); and proposed accessibility guidelines under title II of the ADA, issued by the ATBCB. After

a period of notice and comment, final accessibility guidelines for title II facilities will be issued. Until the Department of Justice adopts final standards under title II, the current title II rule provides that either the Standards or the requirements found in UFAS may be used for title II facilities. The extent to which the ADA requires washing machines to adhere to the Standards' reach range requirements depends on several factors: whether the facility in which they are located is covered by title III or title II of the ADA, whether such washing machines are necessary to the full and equal enjoyment of a facility's services by persons who use wheelchairs, whether a facility is being newly constructed or altered. Title III of the ADA applies to places of public accommodation and commercial facilities. The Standards, which were developed as the accessibility requirements for new construction and alteration of title III facilities, contain requirements for the accessibility of washing machines, including the reach range requirements noted in your constituent's letter. Title II of the ADA applies to facilities owned or operated by state or local government entities. As noted above, entities covered by title II may apply either the Standards or UFAS to their facilities until final standards are adopted under title II. For your convenience, Part I of this letter summarizes the way in which the ADA requirements apply to washing machines in covered facilities and programs. Parts II through V address in detail the requirements with respect to title III, title II, Braille controls, and university dormitories. I. Summary The ADA does not impose an obligation on manufacturers of washing machines to produce machines of a particular design. However, the law may require that facilities and programs covered by the ADA ensure accessibility of washing machines, depending on several factors. First, in facilities covered by title III, sections 36.201 and 36.202 of the title III regulation require a place of public accommodation to make its services accessible to persons with disabilities. To do this, the public accommodation must either provide a sufficient number of accessible washing machines, or it may provide assistive devices, so that persons with disabilities may fully and equally enjoy the services offered. Second, also in facilities covered by title III, places of public accommodation and commercial facilities must follow the requirements of the Standards, including reach range requirements, when installing fixed or built-in machines in a newly constructed or an altered facility. In new construction and

-3alteration, the Standards must be followed, and assistive devices are not acceptable. In existing places of public accommodation that are not otherwise being altered, built-in or free- standing machines must be made accessible, using the Standards and its reach range requirements, if to do so would be readily achievable. If it would not be readily achievable, alternatives that are readily achievable, such as assistive devices, may be used. In facilities covered by title II, the Standards, which prescribe maximum reach ranges, or UFAS, which requires frontloading machines, must be followed in new construction or alterations, and assistive devices are insufficient for ADA compliance. In existing facilities, covered entities must provide access to washing machines that are part of an offered program, but they may do this by using assistive devices. Braille controls are not required for equipment under the new construction or alteration Standards. However, Braille controls are required in places of public accommodation covered by title III, if necessary to provide effective communication with persons with disabilities, unless it would be an undue burden to provide them. They may also be required under sections 36.201 or 36.202. Under title II, Braille controls are required if necessary to provide communication to those with disabilities that is equally as effective as the communication provided to others, unless to do so would pose an undue burden. Finally, privately owned university dormitories are covered by title III, which uses the Standards; State or locally owned university dormitories are covered by title II, which currently uses the Standards as adopted by title II or UFAS; and universities that receive Federal funds, which can fall into either of the other two categories, are covered by the Rehabilitation Act, and must follow UFAS. II. Entities Covered By Title III Title III of the ADA covers laundry facilities in two ways. First, sections 36.201 and 36.202 of the title III regulation obligate places of public accommodation to make their services fully and equally enjoyable by persons with disabilities. Second, the title III provisions for new construction and alteration, which are applicable to fixed machines only, and for barrier removal, which are applicable to washing machines regardless of whether they are fixed or free-standing, require machines to be accessible to persons who use wheelchairs. This

requirement is not related to the inquiry concerning whether accessible washing machines are necessary to the full and equal enjoyment of services. 01-02446

-4A. Coverage under sections 36.201 and 36.202 Sections 36.201 and 36.202 of the title III regulation prohibit public accommodations from denying persons with disabilities "the full and equal enjoyment" of the services and facilities offered. See title III regulation and preamble, ​ 36.201 and 36.202, at pages 35595 and 35555-56. For example, a laundromat or hotel guest laundry room may need to provide some washing machines with lower controls in order to afford persons who use wheelchairs an equal opportunity to benefit from its services and facilities, if the lack of accessible washing machines effectively denies such persons a full and equal opportunity to benefit from the facility's services. See preamble to title III regulation, at page 35572. These sections do not require a specific number of accessible machines, only that enough machines be accessible for persons with disabilities to have a full and equal opportunity to enjoy a facility's services. Sections 36.201 and 36.202 apply to all places of public accommodation, such as laundromats or homeless shelters, whether newly constructed, altered, or neither; but they do not apply to commercial facilities, such as corporate office buildings. Although these sections require that the service be made accessible, they do not require that washing machines meet the Standards. Therefore, a place of public accommodation may satisfy these sections' requirements through alternative means, such as assistance provided on request. Any alternative means, however, must afford persons with disabilities a full and equal opportunity to enjoy the service. Thus, if personal assistance is offered, it must be available at all times, and it must be as effective for persons with disabilities as the service is for other persons. B. Coverage under new construction, alteration, and barrier removal provisions In addition to any obligations under sections 36.201 and 36.202, all places of public accommodation and commercial facilities must comply with ADA requirements for new construction

of facilities and alterations to existing facilities. Places of public accommodation must also comply With ADA requirements for barrier removal from existing facilities not otherwise being altered. The Standards are the accessibility requirements applicable to this area of coverage, but they apply only to equipment that is built into the structure of a building -attached to a wall or floor -- not equipment that is freestanding. See preamble to ADAAG, at page 35415. 01-02447 -5The Standards include maximum allowable reach ranges in accessible areas and requirements for controls and operating mechanisms. Section 4.2 provides that an object over which a person must reach, such as a washing machine, may be no higher than 34" from the floor to be accessible. Section 4.27 addresses clear floor space, reach, and operation of controls. The Standards do not restrict the types of machines that can be used. However, ANSI A117.1-1980 and 1986, UFAS, and other accessibility standards require the use of front-loading machines; research has demonstrated that they can be used more readily by some people with disabilities, because the opening for loading and unloading clothes is visible and reachable from a wheelchair. Under the Standards, top-loading machines are permitted, as long as they can be operated within the requirements for reach and controls. This would include reach to load and unload clothes, as well as reach to the controls and/or coin mechanism. The extent to which a covered entity may deviate from the Standards depends on whether the covered facility is being newly constructed, altered, or neither. In new construction of all facilities covered by title III, the Standards must be adhered to strictly, unless to do so would be structurally impracticable or equivalent facilitation is provided. See section 36.401(c) of the regulation (pages 35599 and 35600) and the preamble (pages 35557 and 35589); sections 2.2, A2.2, and 4.1.1(5)(a) of the Standards and title III regulation preamble, at pages 35607, 35611, 35674, and 35577. See also preamble to ADAAG at pages 35413 and 35415. The "structurally impracticable" exception is a narrow exception that would not apply to washing machines. When alterations are performed in covered facilities, the Standards must be followed, unless to do so would be technically infeasible. Compliance is technically infeasible only if it would require the removal of a load-bearing member of the essential structural frame of a building, or if other existing physical or site constraints prohibit compliance. See Standards ​ 4.1.6(j) and title III regulation preamble, at pages 35617, 35600, and 35581; see also preamble to ADAAG at page 35428.

Thus, in new construction and alteration of facilities, in most cases, the accessibility requirements must be followed for builtin washing machines. While assistive devices may also be offered, they do not relieve the covered entity from compliance with these requirements. In existing places of public accommodation covered by title III that are not otherwise being altered, the ADA requires that architectural barriers to access be removed where the removal is readily achievable. See title III regulation and preamble, ​ 36.304, at pages 35597 and 35568-70. This requirement does not apply to commercial facilities. Readily achievable means capable of being done without much difficulty or expense. See title III regulation and preamble, 36.104, at pages 35594 and 35553-54. Thus, under barrier removal, washing machines must be modified if -6-

it is readily achievable to do so. Even free-standing machines may need to be made accessible to persons who use wheelchairs, because barrier removal obligations are not limited to built-in equipment. If removing barriers from existing facilities is not readily achievable, the ADA requires that alternatives to removing barriers be undertaken, as long as those alternatives are readily achievable. See title III regulation and preamble, 36.305, at pages 35596 and 35570-71. In such existing facilities, then, controls on washing machines must be modified to be within an accessible reach range for persons who use wheelchairs, if such modification is readily achievable. Assistive devices that are provided on request may be sufficient for ADA compliance in this context only if modifying the machines is not readily achievable. In new construction and alteration of facilities covered by title III, the number of fixed or built-in washing machines that must meet the reach range and other requirements of the Standards depends on the type of facility in which the machines are located. For transient lodging in hotels, motels, or dormitories, sections 9.1 and 9.2.2 of the Standards require all fixed or built-in facilities located in public and common use areas, and fixed or built-in facilities located within sleeping units that are required to be accessible, to comply with accessibility standards. In social service center establishments, such as shelters or group homes, section 9.5.1 requires at least one of each type of fixed or built-in machine in common areas to be accessible. As noted above, these standards apply strictly to new construction and alteration of

covered facilities. In existing places of public accommodation not covered by sections 36.201 and 36.202, these standards must be met if to do so would be readily achievable. III. Entities covered by title II Title II of the ADA applies to programs and facilities owned or operated by State or local government entities or instrumentalities. New construction and alteration of title II facilities must follow either the Standards or UFAS, until final standards are adopted under title II. In existing title II facilities, responsible entities must ensure that each program, when viewed as a whole, is accessible to persons with disabilities. Structural changes are not necessarily required under this standard, if programs can be made accessible in other ways. See title II regulation and preamble, 35.150, at pages 35719-20 and 35708-09. Therefore, under the "program access" standard, use of assistive devices may result in compliance with the ADA as long as the assistive devices function to make that aspect of the program accessible to persons with disabilities. -7IV. Braille controls Under title III, the extent to which washing machines are required to have Braille controls depends on whether the facility in which they are located is a place of public accommodation or a commercial facility. Public accommodations are required by section 36.303 of the title III regulation to furnish auxiliary aids and services where necessary to ensure effective communication with persons with disabilities, unless doing so would pose an undue burden or would fundamentally alter the service offered. See title III regulation and preamble, S 36.303, at pages 35597 and 35565-68. Therefore, a place of public accommodation that offers washing machines with words on them must provide an effective way of communicating any words on the machine to persons with vision impairments. Braille lettering is one such method of communication. However, the Braille lettering need not be built into the equipment controls; equipment controls can be Brailled by templates or adhesive labels. Braille lettering may also be required under sections 36.201 or 36.202 of the rule, as discussed above in part II.A. Commercial facilities are not required to modify washing machines to have Braille lettering, because commercial facilities are not covered by the auxiliary aids and services requirements or by sections 36.201 and 36.202. In facilities covered by title II, auxiliary aids and services must be provided to ensure communication with persons

with disabilities that is equally as effective as communication with others, unless to do so would pose an undue burden or a fundamental alteration to the service. See title II regulation and preamble, 35.160, at pages 35721 and 35711-12. V. University Dormitories University dormitories, if privately owned, are covered by title III of the ADA. They therefore must comply with sections 36.201 and 36.202 of the title III regulation, if applicable, and they must apply the Standards in new construction and alterations, and, if readily achievable, in existing facilities not being altered. Universities owned and operated by State or local governments are covered by title II of the ADA, and currently may choose between the Standards, which do not necessarily require front-loading washing machines, and UFAS, which specifically requires front-loading machines. (Whichever standard is chosen must be used throughout the facility.) In addition, the proposed ADA guidelines for residential units covered by title II specify that at least one washing machine in any laundry facility must be front-loading, and must meet other requirements from the Standards for controls. See proposed title II guidelines and preamble, 13.3.5, at pages 60663 and 60639. Moreover, any university, public or private, -8that receives Federal funds is also covered by section 504 of the Rehabilitation Act of 1973; application of UFAS generally satisfies the new construction and alteration requirements of the section 504 regulations. I hope this information is helpful to you in responding to your constituent. Please do not hesitate to contact me if we can provide additional assistance on this or any other matter. Sincerely,

M. Faith Burton Acting Assistant Attorney General Enclosures

01-02451​April 21, 1993

The Honorable Janet Reno Attorney General Department of Justice Constitution Avenue between 9th and 10th Streets Washington, D.C. 20530 Dear Madam Attorney General: I wanted to bring to your attention a matter of considerable concern to a major employer in my home state of Iowa. The Maytag Company is a major manufacturer of home appliances headquartered in Newton, Iowa. The company has been unable to obtain from the Department of Justice certain interpretations of final rules that the Department has issued under Title III of the Americans with Disabilities Act. Since September, 1992 Maytag has made numerous requests for information and has sought meetings to clarify these rules which are essential to the production and sale of clothes washers and other manufactured products. Despite repeated requests for assistance to the Department's ADA office, none has been forthcoming. I would request that you look into this matter personally with the hope that a decision could be forthcoming. I am not asking for a specific decision... only that a decision be made. Thank you for your assistance.

Sincerely, Charles E. Grassley United States Senator CEG/jb

01-02452