Regulatory references: 28 CFR 36.402-36.406; Appendix A.
What is a primary function area? It is any area where a major activity takes place. It includes both the customer services areas and work areas in places of public accommodation. It includes all offices and work areas in commercial facilities. It does not include mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, or restrooms.
ILLUSTRATION 1: The customer service area of a dry cleaning store and the employee area behind the counter are both primary function areas.
ILLUSTRATION 2: Remodeling an office is an alteration to a primary function area. But remodeling the employee restrooms is not an alteration to a primary function area.
ILLUSTRATION 3: Installing a new floor surface in a factory work room is an alteration to a primary function area, but installing a new floor surface in the corridor leading to the work room is not.
What is a "path of travel"? It is a continuous route connecting the altered area to the entrance. It can include sidewalks, lobbies, corridors, rooms, and elevators. It also includes phones, restrooms, and drinking fountains serving the altered area.
Does this mean that every single time any minor alteration is made in a primary function area, the "path of travel" requirement is triggered? In other words, does a simple thing like changing door hardware trigger the path of travel requirement? No. There are some alterations that will never trigger the path of travel requirement. The Department's regulation states that alterations to windows, hardware, controls, electrical outlets, and signs do not trigger path of travel requirements. (If they affect usability, however, they are still considered to be "alterations" and must be done accessibly.) ADAAG gives some additional exceptions: the path of travel requirement is not triggered if alteration work is limited solely to the electrical, mechanical, or plumbing system, hazardous material abatement, or automatic sprinkler retrofitting, unless the project involves alteration to elements required to be accessible.
ILLUSTRATION 1: An office building manager is replacing all of the room number signs. This is an "alteration" because it can affect usability by an individual who is blind. Thus, the new signs must comply with ADAAG requirements for permanent signs. However, the path of travel requirement is not triggered. Even though an alteration is being made in a primary function area, alterations to "signs" are in the list of alterations that will never trigger the path of travel requirement.
ILLUSTRATION 2: The building manager now replaces the men's and women's room signs. Again this is an alteration because it can affect usability, and the new signs must comply with ADAAG. Here, the path of travel requirements are not triggered for two separate reasons. First, as in the above case, the alteration is to "signs" and thus will never trigger the path of travel requirement. In addition, in this case, the alteration is to the restroom. Restrooms are not primary function areas. Thus, the path of travel requirement can never be triggered by an alteration to a restroom.
What if a tenant remodels his store in a manner that would trigger the path of travel obligation, but the tenant has no authority to create an accessible path of travel because the common areas are under the control of the landlord? Does this mean the landlord must now make an accessible path of travel to the remodeled store? No. Alterations by a tenant do not trigger a path of travel obligation for the landlord. Nor is the tenant required to make changes in areas not under his control.
What costs can be included in determining whether the 20 percent disproportionality limitation has been met? Widening doorways, installing ramps, making bathrooms accessible, lowering telephones, relocating water fountains -- as well as any other costs associated with making the path of travel accessible -- can be included.
What if the cost of making an accessible path of travel would exceed the cost of the original alteration by much more than 20 percent? In such a case, is the entity exempt from the path of travel requirement? No. The entity must still make the path of travel accessible to the extent possible without going over 20 percent, giving priority to those elements that provide the greatest degree of access. Changes should be made in the following order: accessible entrance, accessible route to the altered area, at least one accessible restroom for each sex or single unisex restroom, phones, drinking fountains, and then other elements such as parking, storage, and alarms.
ILLUSTRATION: A library is remodeling its reading area for a total cost of $20,000. The library must spend, if necessary, up to an additional $4,000 (20 percent of $20,000) on "path of travel" costs. For $4,000 the library can install a ramp leading to the reading area, and it can lower telephones and drinking fountains. For $3,500 the library can create an accessible restroom. Because the most important path of travel element is the entrance and route to the area, the library should spend the money on the ramp, telephones, and drinking fountains.
Can an entity limit its path of travel obligation by engaging in a series of small alterations? No. An entity cannot evade the path of travel requirement by doing several small alterations (each of which, if considered by itself, would be so inexpensive that adding 20 percent would not result in addition of any path of travel features). Whenever an area containing a primary function is altered, other alterations to that area (or to other areas on the same path of travel) made within the preceding three years are considered together in determining disproportionality. Only alterations after January 26, 1992, are counted. In other words, all of the alterations to the same path of travel taken within the preceding three years are considered together in deciding whether the 20 percent has been reached.
ILLUSTRATION: On February 1, 1992, a nursery school with several steps at its entrance renovates one of its classrooms. The renovations total $500, triggering up to $100 worth of path of travel obligations (20 percent of $500). Because $100 will not buy a ramp and because no other accessible features needed in that particular nursery school can be added for $100, no path of travel features are added. On October 1, 1992, more renovations are done at a cost of $1,000, this time triggering path of travel obligations of up to $200. As before, no path of travel features are added. Then, on March 1, 1993, another minor renovation ($2,000) is made to the same area, this time triggering path of travel obligations of up to $400. Had the nursery school done all three small renovations at the same time, the cost would have been $3,500, triggering a path of travel obligation of up to $700. For $700, an accessible ramp could have been installed.
In determining amounts that must be spent on path of travel features at the time of the March 1, 1993, renovation, the nursery school must spend up to 20 percent not just of the $2,000 renovation taking place on March 1, but, rather, up to 20 percent of all of the renovations in the preceding three years put together. Thus, on March 1, 1993, the nursery school must spend up to 20 percent of $3,500 or $700 (the total cost of the three small renovations) rather than up to 20 percent of $2,000 or $400 (the cost of just the March 1, 1993, renovation).