The purpose of this article is to discuss requirements for leased buildings or facilities within the Americans with Disabilities Act (ADA) and the Architectural Barriers Act (ABA).

The ADA applies to Title II, State and local government buildings and facilities, and Title III, public accommodations and commercial facilities. The ABA, first published in 1968, applies to federal buildings or facilities that were:

(1) constructed or altered by or on behalf of the United States government;

(2) leased in whole or in part by the United States government after August 12, 1968;

(3) financed in whole or in part by a grant or a loan made by the United States after August 12, 1968, if such building or facility is subject to standards for design, construction, or alteration issued under authority of the law authorizing such grant or loan; or

(4) constructed under authority of the National Capital Transportation Act of 1960, the National Capital Transportation Act of 1965, or title III of the Washington Metropolitan Area Transit Regulation Compact.

The photo above is the front façade of a contemporary Federal building with a ramp leading to the front entrance. This building must comply with the ABA for accessibility.

For Federal buildings and facilities built before 1968, ie pre-ABA, alterations and leases undertaken after 1968 are also covered by the ABA.

Four agencies establish the ABA standards according to guidelines issued by the US Access Board including:

• Department of Defense (DOD)

• Department of Housing and Urban Development (HUD)

• General Services Administration (GSA)

• U.S. Postal Service (USPS).

The 2015 ABA Accessibility Standards have been adopted by GSA, DOD, and USPS. The USPS standards do not include the non-mandatory advisory notes. HUD’s adoption of these standards is pending. Examples of ABA covered buildings and facilities includes:

• Federal office buildings

• United States Post Offices

• Federal prisons and courthouses

• Social Security Administration offices

• National Parks, Monuments, Forests

• Department of Defense (DOD) facilities

Overview of the GSA

The General Services Administration (GSA) is a government agency that was established in 1949. The GSA has evolved over the years and today is tasked with managing government buildings and real estate, providing product and service procurement support, and developing policies and regulations. On behalf of the US government, GSA owns and/or leases over 376.9 million square feet of space in 9,600 buildings in more than 2,200 communities nationwide.

Most Federal buildings and facilities managed by the GSA must comply with the ABA. The GSA ABA Standards cover the following Federal agencies:

• Department of Transportation (DOT)

• Department of Justice (DOJ)

• Department of Veterans Affairs (VA)

• National Security Agency (NSA)

• Department of the Interior

• Department of Agriculture

• Department of Labor

• Environmental Protection Agency (EPA)

• US Access Board (USAB)

• Department Homeland Security

• National Park Service (NPS)

• U.S. Forest Service (USFS)

ADA vs ABA, So What’s the Difference?

As stated above, the ABA applies to Federal buildings and facilities, the ADA applies to Title II and III buildings and facilities, which are non-federal. The main differences between the ADA and ABA laws are in the application/scope chapters 1 and 2 and DOJ and DOT added requirements for 2010 ADA Standards. Chapter(s) 2 in the ADA and ABA cover scoping requirements. With respect to leased buildings and facilities, the ABA has a section in Chapter 2 (F202.6) specifically for leased properties, and the ADA does not. To a great extent, the technical requirements found in Chapters 3-10 of the ADA and ABA are similar. See below for information in Chapter 2 of the ABA regarding leased properties.

ABA Standard F202.6, Leases

2015 ABA Standard F202.6, [Existing Buildings and Facilities] Leases, states, “Buildings or facilities for which new leases are negotiated by the Federal government after the effective date of the revised standards issued pursuant to the Architectural Barriers Act, including new leases for buildings or facilities previously occupied by the Federal government, shall comply with F202.6.” Exceptions to this Standard include:

1. Buildings or facilities leased for use by officials servicing disasters on a temporary, emergency basis shall not be required to comply with F202.6.

2. Buildings or facilities leased for 12 months or less shall not be required to comply with F202.6 provided that the lease may not be extended or renewed.

2015 ABA Standard F202.6.1, Joint Use Areas, states, “Joint use areas serving the leased space shall comply with F202.6.” Joint use areas are defined by ABA as “interior or exterior rooms, spaces, or elements that are common space available for use by all occupants of the building. Joint use does not include mechanical or custodial rooms, or areas occupied by other tenants.”

EXCEPTION: Alterations and additions to joint use areas serving the leased space shall not be required to comply with F202.2, F202.3, and F202.5 provided that the alterations are not undertaken by or on behalf of the Federal government.

When negotiating a lease, ensure that joint use areas are accessible. Either the ABA or the ADA should apply. Inaccessible joint use areas may prevent access to and from leased space.

The remainder of the 2015 ABA Standards in F202.6 cover the following topics:

F202.6.2 - Accessible Route

F202.6.3 - Toilet and Bathing Facilities

F202.6.4 - Parking

F202.6.5.1 - Drinking Fountains

F202.6.5.2 - Fire Alarms

F202.6.5.3 - Public Telephones

F202.6.5.4 - Dining Surfaces and Work Surfaces

F202.6.5.5 - Assembly Areas

F202.6.5.6 - Sales and Service Counters

F202.6.5.7 - Depositories, Vending Machines, Change Machines, and Mail Boxes

F202.6.5.8 - Residential Dwelling Units

F202.6.5.9 - Emergency Transportable Housing Units with Mobility Features

F202.6.5.10 - Emergency Transportable Housing Units with Communication Features

Elements that are not required by 2015 ABA Standard F202.6 but that may be required in alterations include:

• F204 Protruding Objects

• F205 Operable Parts

• F207 Accessible Means of Egress

• F209 Passenger Loading Zones and Bus Stops

• F212 Kitchens, kitchenettes, and sinks

• F214 Washing Machines and Clothes Dryers

• F216 Signs

• F220 ATMs and Fare Machines

• F220 Dressing, Fitting, and Locker Rooms

Similar to the ADA, the ABA applies to fixed or built-in elements only. Elements that are not fixed or built-in are not covered by the 2015 ABA Standards.

2015 ABA Standard F203.2, [General Exceptions] Existing Elements, states, “Elements in compliance with an earlier standard issued pursuant to the Architectural Barriers Act or Section 504 of the Rehabilitation Act of 1973, as amended, shall not be required to comply with these requirements unless altered.”

The exception in F203.2 does not obviate or limit in any way a federal agency’s obligation to provide reasonable accommodations pursuant to the Rehabilitation Act of 1973. Federal employees with disabilities are entitled to reasonable accommodations in the workplace. Such accommodations may include modifications to workstations or to other areas of the workplace, including the common areas such as toilet rooms, meeting rooms, or break rooms. Reasonable accommodations are always provided on a case-by-case basis and are specific to the unique needs of a person. As such, an accommodation may be consistent with, or depart from, the specific technical requirements of the ABA, or any other document.

Lease Requirements Under the ADA

Again the 2010 ADA Standards do not specifically cover leased buildings and facilities. However, §36.403 [Title III] Alterations: Path of travel, states, “(d) Landlord/tenant: If a tenant is making alterations affecting primary function areas, the path of travel obligations apply only to the area they occupy and does not trigger requirements on the landlord (unless the landlord is otherwise altering related areas).” In other words, if the tenant in a leased property alters a primary function area, it is the tenants responsibility to make sure the ADA is applied to the alteration and the path of travel to the alteration.

ADA Title III Regulations address landlord-tenant responsibilities in Implementation Regulation §36.201(b), which states, “(b) Landlord and tenant responsibilities. Both the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are public accommodations subject to the requirements of this part. As between the parties, allocation of responsibility for complying with the obligations of this part may be determined by lease or other contract.” In other words, under the ADA, both the landlord and the tenant [in leased properties] have and share responsibilities for compliance with the ADA. The terms of this shared responsibility must be made clear in the lease agreement.

Beyond this, both alterations and tenant build outs of leased Title II and III properties are covered by the ADA. Furthermore, under Title II, State and Local Governments have “Program Access” obligations. Under Title III, Private Entities who are public accommodations have “readily achievable barrier removal” obligations. Finally, both Title II and III owners/landlords and lease holders have obligations for “reasonable accommodations” for employees.

SUMMARY: The ABA has specific requirements for buildings and facilities leased by or to the US federal government. The ADA does not have specific requirements for Title II or III leased buildings or facilities, however, there are some requirements for leased Title II and III property in implementation regulations regarding obligations for program access, barrier removal, and reasonable accommodations.
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If you observe a facility or entity that is not ADA compliant and you would like to know how to proceed, please see the link at What To Do When A Building Is Not ADA Compliant or Accessible.

ADA Inspections Nationwide, LLC, offers ADA/ABA/FHA accessibility compliance inspections for buildings and facilities, as applicable to the different laws, and expert witness services with respect to ADA/ABA/FHA laws for building owners, tenants and managers. Also, ADAIN offers consulting for home modifications as a CAPS consultant for people wishing to age in place in their homes. For a complete list of services please see ADAIN Services.

Thank you.