Maintenance of Accessible Features:
It is an expectation under the ADA that all accessible features will be maintained and in working order. While Title II of the ADA does not directly address maintenance, except in specific situations (such as elevators and chairlifts), the ADAAG 2004 (Incorporated fully into ADA 2012) provides general guidance that establishes the obligation to maintain accessible features in a proper working order. Specifically it state:
Advisory 101.1 General. In addition to these requirements, covered entities must comply with the regulations issued by the Department of Justice and the Department of Transportation under the Americans with Disabilities Act. There are issues affecting individuals with disabilities which are not addressed by these requirements, but which are covered by the Department of Justice and the Department of Transportation regulations.
The regulations referenced in Advisory 101.1 related to the maintenance of accessible features are clarified in the following citation from the Americans with Disabilities Act – Title II Technical Assistance Manual. It clarifies the obligations of recipients related to maintenance of accessible features under Title II.
II-3.10000 Maintenance of accessible features. Public entities must maintain in working order equipment and features of facilities that are required to provide ready access to individuals with disabilities. Isolated or temporary interruptions in access due to maintenance and repair of accessible features are not prohibited.
Where a public entity must provide an accessible route, the route must remain accessible and not blocked by obstacles such as furniture, filing cabinets, or potted plants. An isolated instance of placement of an object on an accessible route, however, would not be a violation, if the object is promptly removed. Similarly, accessible doors must be unlocked when the public entity is open for business.
Mechanical failures in equipment such as elevators or automatic doors will occur from time to time. The obligation to ensure that facilities are readily accessible to and usable by individuals with disabilities would be violated, if repairs are not made promptly or if improper or inadequate maintenance causes repeated and persistent failures.
ILLUSTRATION 1: It would be a violation for a building manager of a three-story building to turn off the only passenger elevator in order to save energy during the hours when the building is open.
ILLUSTRATION 2: A public high school has a lift to provide access for persons with mobility impairments to an auditorium stage. The lift is not working. If the lift normally is functional and reasonable steps have been taken to repair the lift, then the school has not violated its obligations to maintain accessible features. On the other hand, if the lift frequently does not work and reasonable steps have not been taken to maintain the lift, then the school has violated the maintenance of accessible features requirement.
ILLUSTRATION 3: Because of lack of space, a city office manager places tables and file cabinets in the hallways, which interferes with the usability of the hallway by individuals who use wheelchairs. By rendering a previously accessible hallway inaccessible, the city has violated the maintenance requirement, if that hallway is part of a required accessible route.
Additional clarification on the intent of the ADA related to maintenance of accessible features can be found in Title III of that act, which addresses the expectation in the following way:
28 CFR 36.211 Maintenance of accessible features
(a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
(b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.
(c) If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards.”
During the course of an onsite review, reviewers will document any maintenance issues that could pose a significant safety concern to an individual with a disability, whether the maintenance issue is connected to an accessible feature or a general facilities provision that is used by individuals with disabilities. Generally, these issues can be addressed through general maintenance and are subject to the maintenance of accessible features citations referenced above.