U.S. Department of Justice Civil Rights Division Coordination and Review Section DJ 204-45-0 P.O. Box 66118 Washington, D.C.

20035-6118

Sheri E. Long, Esquire Assistant City Attorney City of Omaha Omaha/Douglas Civic Center 1819 Farnam Street Suite 804 Omaha, Nebraska 68183-0804 Dear Ms. Long: This letter responds to the issues you raised in your letter of August 2, 1993, and in your December 14, 1993, phone conversation with Anne Marie Pecht, of my staff. In your letter you requested our opinion as to whether certain renovations that the City of Omaha is planning to make in a number of its firehouses will comply with the requirements of the Americans with Disabilities Act of 1990 (ADA). After Ms. Pecht spoke with you she discovered that you had also raised these issues in a letter to Senator Kerrey, which was recently forwarded to this office for our assistance in responding. You may already have received a response through Senator Kerrey's office. Because Ms. Pecht spoke directly with you she was able to provide the additional, more specific, information included in this letter. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities with rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the requirements of the ADA. It does not, however, constitute a legal interpretation and is not binding on the Department of Justice. As you discussed with Ms. Pecht, you are aware that the ADA does not require the City of Omaha to renovate its firehouses, unless renovations are necessary to provide program access. We understand, however, that you are making these renovations for other purposes. Section 35.151 of the enclosed title II regulation covers new construction and alterations by entities subject to title II of the ADA, that is, State and local

governmental entities such as the City of Omaha. Section 35.151(b) of the title II regulation requires that any cc: Records CRS Chrono Friedlander Breen FOIA LOF Payne Keenan Pecht.techasst.ltr.long.ltr 01-02885

2 alteration to a title II facility that affects or could affect the usability of the facility must, to the maximum extent feasible, be made in such a manner that the altered portion of the facility is "readily accessible to and usable by individuals with disabilities." Section 35.151(c) of the title II regulation currently allows title II entities to meet this requirement by following either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), except that the elevator exception contained in sections 4.1.3(5) and 4.1.6(1)(k) of ADAAG is not available for title II facilities. We understand that the City of Omaha has selected ADAAG as its accessibility standard. Therefore, the balance of this discussion will refer to the applicable sections of ADAAG. (As you discussed with Ms. Pecht, the U.S. Architectural and Transportation Barriers Compliance Board (Access Board) and the Department of Justice are in the process of amending ADAAG to include provisions directly applicable to title II facilities. After the revised Accessibility Guidelines are adopted by the Department of Justice, title II entities will be required to follow ADAAG and will no longer have the option of following UFAS. (We look forward to receiving any comments you may have on the proposed title II Guidelines when they are published by the Department of Justice.) Your letter attempts to distinguish between renovations to bathroom and shower facilities in fire stations that are used solely by fire fighters (and not open in any way to members of the public) and renovations to those same facilities in fire stations that you plan to use for civil defense purposes. Under title II, however, restrooms and shower facilities (along with

employee lounges, cafeterias, health units, and exercise facilities) are considered common use areas, and must be constructed or altered in full compliance with ADAAG, whether they are open to the public or are planned to be used solely by employees (such as fire fighters) who must meet rigorous physical qualification standards in order to perform the essential functions of their jobs. Note, however, that areas used only by employees as work areas are subject to a more limited requirement. section 4.1.1(3) of ADAAG provides that employee work areas must be designed and constructed so that employees with disabilities can approach, enter, and exit such areas. The adaptations required by an individual employee with disabilities to permit that individual to work within the work area would, as you pointed out, be treated on a case-by-case basis as a reasonable accommodation under the standards established under title I of the ADA. The requirements applicable to employee work and common 01-02886 3 use areas are discussed in section III-7.3110 of the enclosed title III Technical Assistance Manual. For your convenience, we have also enclosed a copy of the title II Manual. The basic rule for alterations under ADAAG is that, when existing elements, spaces, or common areas are altered, each altered element, space, feature, or area shall comply with the applicable ADAAG requirements for new construction. See section 4.1.6(1)(b). The requirements for accessible toilet rooms (i.e., rooms that include fixtures such as water closets, toilet stalls, urinals, and lavatories) are located in section 4.22 of ADAAG. The requirements for accessible bathrooms, bathing facilities, and shower rooms are located in section 4.23. An exception to full compliance with the standards for new construction is made when compliance would be "technically infeasible", as that term is defined under section 4.1.6(l)(j) of ADAAG. If it is technically infeasible to comply with 4.22 or 4.23 when altering toilet or bathing facilities, section 4.1.6(3)(e)(i) permits the installation of one unisex facility located in the same area as the existing facilities, in lieu of modifying the existing facilities to be accessible. If stalls are provided, section 4.1.6(3)(e)(ii) permits the use of one of

the smaller alternate stalls where it is technically infeasible to install a standard stall. As we understand it, there are three possible situations you may encounter in undertaking this renovation project, as follows: (i) an existing men's toilet room and/or shower room will be renovated and comparable women's facilities will be added; (ii) an existing men's toilet and/or shower room will be converted to unisex use; or (iii) a completely new unisex toilet and/or shower room will be added. With respect to situation (i) above, the renovated men's facilities and the new women's facilities must comply with ADAAG standards for new construction, unless compliance is technically infeasible, in which case you may either install a unisex toilet and/or shower room as provided in section 4.1.6(3)(e)(i), or reduce the stall size as permitted by section 4.1.6(3)(e)(ii) Please note, however, that the technical infeasibility exception is meant to be a very limited exception to the requirement for accessibility in alterations. When entirely new facilities (such as the planned women's facilities) are located within an existing building, the exception for technical infeasibility will be very strictly interpreted. With respect to the situation described in (ii) above, it is permissible to convert an existing men's toilet and/or shower room to a unisex room. In the situation described in (iii) above, it is permissible to create a single new unisex toilet and/or shower room. In both cases the new unisex rooms must comply with the ADA Guidelines. 01-02887 4 For assistance in complying with technical aspects of the ADA Accessibility Guidelines, you may wish to contact an accessibility specialist at the Access Board by telephone at 800-USA-ABLE or 202-272-5434, or by TDD at 202-272-5449. I hope this information has been helpful to you. Sincerely,

Stewart B. Oneglia

Chief Coordination and Review Section Civil Rights Division Enclosures (3) 01-02888