Are the disabled being discriminated against, yet again?

We live in a very different world – one that few if any, could have seen coming. COVID-19 has changed things dramatically, perhaps even forever, if not the foreseeable future. The sudden onset and social implications of the current viral crisis, has caught society off guard. As we try to acclimate to what is a dynamic environment, most of us can adapt, at least temporally, and accommodate to the evolving situation.

But, what about persons with disabilities, where just negotiating (let’s face it), a less than accessible world, has just become more challenging.

We all see the little tape markings at 6-floor intervals in places we need to negotiate, but for someone who is vision impaired, the 6-foot spatial distancing really has little meaning. There aren’t any tactile cues that would let them understand the distances for example, when lining up to pay in a store, or shopping along an aisle in the local supermarket. So, are vision impaired persons being discriminated against by the lack of tactile information in this respect?

Does social distancing requirements need to meet accessibility provisions?

Is this a relevant question? I mean, these requirements are just temporary by their very nature. Here one might refer to Section 11B-108, which says, “A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be accessible to and useable by persons with disabilities. Isolated or temporary interruptions in service or accessibility due to maintenance or repairs shall be permitted.” Well, is the 6-foot demarcation temporary? We hope so, but it does not fall under “maintenance” or “repairs”, so what guidance can one get in this and other similar situations? We shall examine the notion of “temporary” as referenced in the code in the following paragraphs.

Our Changed World and the New Normal

No dining in, no school attendance, no university classes, no movie theater attendance, no swimming or tanning at the beach, no return to work (if it’s even open) for many of us, no walking around shopping centers or shopping districts, no overseas travel, no cruises, no … and the list of No-No’s goes on and on. One thing that is likely to become more regular and popular, at least in the short term, are temporary medical drive-through and walk-in viral testing facilities. Additionally, what about temporary hospitals or care facilities? An example of this, would be the conversion of convention centers into medical care facilities. This has already been done at the Jacob K. Javits Convention Center in New York. Apparently, the main showroom center will be broken up into four 250-bed hospitals, each comprising 40,000 sf in size (ref: https://www.businessinsider.com/photos-emergency-coronavirus-hospital-built-in-nyc-javits-center-2020).

If it’s TEMPORARY, is ADA Accessibility “NECESSARY”?

Obviously, this is a temporary solution in exceptional times, but even temporary solutions have to be accessible. For ease of reference, the 2019 version of the California Building Code (CBC 2019) has been used, though one could utilize the 2010 ADA or other provisions as well.

Under Section 1.9.1 General “The provisions of these regulations shall apply to any portable buildings leased or owned by a school district and shall also apply to temporary and emergency buildings and facilities. Temporary buildings and facilities are not of permanent construction but are extensively used or are essential for public use for a period of time. Examples of temporary buildings or facilities covered include, but are not limited to reviewing stands, temporary classrooms, bleacher areas, exhibit areas, temporary banking facilities, temporary health screening services or temporary safe pedestrian passageways around a construction site.” In accordance with the DSA Advisory, “Temporary facilities and emergency construction are both required to comply with the CBC regulations for accessibility. See CA Gov. Code §4451(e).”

In accordance with the DSA-AC definition buildings and facilities intended for use at one location for not more than one year, are considered temporary. The DSA Advisory states, “Temporary buildings and facilities must be accessible to the same degree as permanent facilities per CA Gov. Code §4451(e).”

One could refer to the notion that ‘life safety provisions trump accessibility requirements, but though one might argue that the conversion of the center to a temporary hospital is a potential life safety measure, it is unlikely that taking cognizance of basic accessibility provisions, would compromise the efficacy the temporary hospital.

Under section 11B-201.3 “Temporary and permanent structures. These requirements shall apply to temporary and permanent buildings and facilities.”

 As an aside under section 11B-203.2, structures and equipment associated with the construction process, do not have to be accessible, but that is an entirely separate matter.

Getting back to the example of the vision impaired person negotiating the 6-floor social distancing, one could ask what sort of tactile signage would suffice and is there even any such signage? Additionally, if it’s only temporary, is it even necessary?

Well under section 11B-216 Signs. General. “New or altered signs shall be provided in accordance with Section 11B-216 and shall comply with Section 11B-703. The addition of or replacement of signs shall not trigger any additional path of travel requirements.”

Per 11B-216.3 “Directional and informational signs. Signs that provide direction to or information about interior and exterior spaces and facilities of the site shall comply with Section 11B-703.5.”

Social service centers that might be temporarily erected or converted for temporary housing, would still have to meet the relevant accessibility requirements encapsulated in 11B-224.1 through 11B-224.6 as well as 11B-233.3. There are many homeless people in California cities and all across the country. If one is to require them to be isolated then one would have to provide faculties that can accommodate them and at the same time be accessible. What does this mean in practical terms? Well, things like storage spaces, clear floor spaces in sleeping and other areas would have to be accessible as well as roll-in type showers and other accommodations.

Post-Covid-19 and a Return to the New, New Normal

As we move from a post-COVID-19 emergency response situation to a more permanent and livable lifestyle, some of the safety and environmental requirements will rewrite the way we interact with our built environment and with each other.

Restaurants will re-open, people will return to work, but what changes are likely to occur in our relationship to the built environment and indeed to each other? Will restaurant tables be spaced 6-feet apart? What about chatting at work around the proverbial water cooler, which should have already been an accessible high-low, prior to our current health crisis? Will the whispering of office gossip be a thing of the past, as social distancing makes speaking in ‘soto voce’, more difficult to achieve?

With regard to restaurants, will seating capacities be halved, or even less? How will that affect profitability and pricing? And what about bars where social distancing is not going to facilitate social interaction? Perhaps it is from here that we can take a cue from the world of accessibility compliance, where special cues are actually practical requirements that enhance and in fact allow access.

In a rather strange way accessibility requirements have already anticipated the spatial, social new norm. Think about the 60-inch turning radii, or the 30” x 48” clear floor space. So, there are already societal cues built around access compliance and although many places still remain inaccessible, the awareness is there, and the world has not stopped turning.

In conclusion

As a society, we have adapted to the spatial necessities of access compliance, and so too we will be able to overcome the COVID-19 social distancing requirements. If access compliance is about accommodating the disabled portion of our society, then the viral contagion awareness is about accommodating all of us.