QUESTION: When new showers are installed in private or restricted access areas, such as private offices, are they required to be installed to the accessibility requirements for persons with disabilities?

DETERMINATION: In affected buildings, or portions thereof, required to be accessible to persons with disabilities, staff advises that new showers must be made accessible pursuant to the OSSC, unless a waiver is approved pursuant to ORS 447.250.

ANALYSIS: The determination above results from staff review and analysis of OSSC Chapter 11 and the Americans with Disabilities Act Accessibility Guidelines (ADAAG), as follows:

1. New bathing facilities, including showers when provided, must comply with the requirements of OSSC Section 1108.2.1.
2. The term "new" in this analysis means:
1. New construction of bathing facilities;
2. Addition of new bathing facilities;
3. Replacement of existing bathing facilities; and
4. Alteration of existing bathing facilities when required by OSSC Section 1113.1.1.
5. Alteration of existing bathing facilities when required by OSSC Section 1113.2. See OSSC Section 1113.1.2.1 Exception 3 that describes when alteration of existing bathing facilities is not required.
3. Review of ADAAG Sections 4.22 and 4.23 and OSSC Chapter 11, indicates that the term "bathing facilities" specifically includes the bathtub and/or shower used to bathe in, as well as associated elements such as lavatories. A "bathroom" may include both toilet facilities and bathing facilities. A "shower room" and "bathing room" may include only bathing facilities. A "toilet room" may include only toilet facilities (water closets, urinals and/or associated elements).
4. When new showers are provided, at least 2%, but not less than one, shower must comply with the requirements of OSSC Section 1109.10.

 

EXCEPTIONS:

1. An alternate method or design for a shower may be approved by the building official pursuant to Section 1101.3. The alternate must provide substantially equivalent or greater accessibility.
2. A waiver or modification may be approved pursuant to OSSC Section 1101.6 (ORS 447.250) because the Americans with Disabilities Act (ADA) provides an exemption for bathing facilities (including an exemption from adaptability) for specific spaces. See ADAAG Section 4.1.3(11). When a waiver is approved, a shower provided in a private office or other non-public or non-common use bathing facility, is not required to meet the OSSC accessibility or adaptability requirements. See the attached flow chart that describes the waiver process.

 

Example 1: New bathing facilities are added to a private office space. ADAAG Section 4.1.3(11) states:

"If toilet rooms are provided, then each public and common use toilet room shall comply with 4.22 [be accessible]. Other toilet rooms provided for the use of occupants of specific spaces (i.e., a private toilet room for the occupant of a private office) shall be adaptable. If bathing rooms are provided, then each public and common use bathroom shall comply with 4.23 [be accessible]."

ADAAG only requires private toilet facilities to be adaptable; not private bathing facilities. Therefore, a waiver may be approved pursuant to ORS 447.250 to exempt the bathing facility, including showers if provided, from accessibility and adaptability requirements of the OSSC.

3. A disproportionate limit may be reached when performing required additional accessibility work. (Note: All proposed accessibility work must comply with OSSC Sections 1113.2 and 1113.1.2, regardless of cost.) When a proposed project affects the usability of an area of primary function, other existing elements must be made accessible to the greatest extent possible pursuant to OSSC Section 1113.1.1 (ORS 447.241). The priority given in altering other existing elements is provided in that statute. The cost of altering other existing elements need not exceed 25 percent of the total cost of the alteration that affects the usability of the area of primary function. However, alterations to these existing elements shall be made accessible to the greatest extent possible within these cost limitations. Since bathing facilities are not included in the list of priorities in ORS 447.241 for providing additional accessibility, providing accessible showers to implement that statute would not often occur.

 

The term "primary function" is defined in statute as "a major activity for which the facility is intended." The U.S. Department of Justice's Title III Technical Assistance Manual further clarifies this definition as including customer service areas and employee work areas, such as offices. It specifically states that an area of primary function does NOT include "mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, or rest rooms."

Therefore, in determining the 25 percent disproportionate limit that may apply to an alteration project, only work that affects the usability of customer service areas and employee work areas should be included.

Example 1: New flooring is installed throughout a store. The flooring affects the usability of the area because it affects whether or not a person in a wheelchair can travel in the store. The new flooring must comply with accessibility requirements. Additionally, no more than 25% of the cost of the flooring in the customer service areas and employee work areas must be spent to provide accessible elements as outlined in ORS 447.251(4).

Example 2: Remodeling a store's rest room is proposed. The remodeled rest room must comply with the accessibility requirements in OSSC Section 1113.2. However, no additional work is required because the rest room is not an area of primary function of the store.

4. A barrier removal improvement plan may be approved to satisfy the requirements of ORS 447.241 described above. The plan shall provide an equivalent or greater level of barrier removal than required by ORS 447.241. The plan shall include a letter of participation from the building owner, a building survey that identifies existing architectural barriers, an improvement plan, a time schedule for the removal of architectural barriers, and an implementation agreement. The plan may be reviewed and accepted through the waiver process under ORS 447.250 and shall be reviewed upon completion or every three years for compliance. In effect, the building owner may use this plan, when approved, to defer costs of barrier removal over the lifetime of the barrier removal and improvement plan. Again, since bathing facilities are not included in the list of priorities in ORS 447.241 for providing additional accessibility, providing accessible showers to implement that statute would not often occur.
Note: These determinations are not equally applicable for covered multifamily dwellings, but may have some similarities in those applications.


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ACCESSIBILITY
WAIVER
PROCESS

Pursuant to ORS 447.250