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existing break room sink

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Nicole Brooks

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Sep 21, 2018
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Baltimore
I have a tenant space that has an existing break room. The sink in the break room is at 36" a.f.f., not 34". The building itself was built in 2004. The tenant space is a business use and not open to the public. I'm not sure of the provenance of the space, it is possible that there was an additional break area when the suite was larger that did meet the code, but has been subdivided at some point in the last 20 years. What is my responsibility as the architect in complying with ada, is it 20% of construction costs towards accessibility? If that is the case, can that 20% be used elsewhere in the building? The tenant does not want to incur the cost of making the break room sink accessible. Can I use that money towards the public restrooms, as I found several items that do not meet code there as well as a breakroom sink in another space space that is also at 36" a.f.f.? Or is all of this moot because everything in the building should have met the code to begin with, in which case it is the landlords responsibility to fix everything?
 
www.ada.gov

2010 ADA Standards for Accessible Design

The 2010 Standards set minimum requirements – both scoping and technical – for newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.
www.ada.gov www.ada.gov

28 CFR 35.151 New construction and alterations​

(iv) Duty to provide accessible features in the event of disproportionality.

(A) When the cost of alterations necessary to make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs.

(B) In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order—

(1) An accessible entrance;

(2) An accessible route to the altered area;

(3) At least one accessible restroom for each sex or a single unisex restroom;

(4) Accessible telephones;

(5) Accessible drinking fountains; and

(6) When possible, additional accessible elements such as parking, storage, and alarms.
 
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steveray said:
20% spend it wherever you choose....
Click to expand...
I thought the 20% was the limit for improving accessibility to areas of primary function when the area of primary function is altered. But assuming that route is already accessible, no additional money has to be spent to upgrade non-accessible, non-altered elements outside the area of primary function. Break rooms are not considered areas of primary function.

U.S. Access Board - Chapter 2: Alterations and Additions

The U.S. Access Board is a federal agency that promotes equality for people with disabilities through leadership in accessible design and the development of accessibility guidelines and standards for the built environment, transportation, communication, medical diagnostic equipment, and...
www.access-board.gov www.access-board.gov

The section regarding where the 20% goes:

U.S. Access Board - Chapter 2: Alterations and Additions

The U.S. Access Board is a federal agency that promotes equality for people with disabilities through leadership in accessible design and the development of accessibility guidelines and standards for the built environment, transportation, communication, medical diagnostic equipment, and...
www.access-board.gov www.access-board.gov

steveray said:
But it is still an ADA violation and they will have to fix if they get a complaint.
Click to expand...
This is the blanket “exception” to what I just said, building owner is responsible for compliance with Federal civil rights legislation. That’s a conversation the owner needs to have with the architect, to get the architect’s recommendations as to upgrades they should consider making to avoid complaints. Actually, it’s probably a conversation the owner needs to have with an attorney!
 
The question is with the exception in the 2010 ADA Standards, does a break room count as a kitchen and/ or wet bar. because kitchen sink or wet bar without a cook top or conventional range is allowed a parallel approach. I have used it in certain cases. Some inspectors are not as open to the concept unless you can center the entire 48" wide clear floor space (of the 30x48 clear area) on the faucet. You also have to look at the faucet and assure that it does not require grasping, pinching, twisting.
ADA Counter Parallel Approach at Sink.png
 
If the break room was used solely by an employee as their "workstation" - -for example, you had a barista employee using the sink to make coffee for employees - - then it would not need to be accessible. The rest of this response assumes this is not the case, and it's a true breakroom:

1. Even if you were not doing any alteration projects, you have an ongoing obligation under ADA Title III (assuming it's a private business) to provide "readily achievable barrier removal". This is a subjective phrase, in that it is partially depended on the financial means of the landlord and/or tenant. If you are billionaires, you can probably afford it. A 36" high sink is considered a "barrier" to use of the sink.

2. Once you start doing an alteration, then you need to make the alteration itself accessible, and you need to make the "path of travel" to the alteration accessible unless it is technically infeasible to do so. The definition of "path of travel" in ADA 202.4 includes restrooms; it does not necessarily include break rooms. So if I were you, I'd prioritize spending towards the restrooms before spending it on break rooms.

My main point here is that spending 20% on ADA improvements does not necessarily grant you immunity from potential lawsuits.
But the inverse is true: when you decide to do an alteration, not spending 20% on path-of-travel improvements can make you an attractive target for a lawsuit.
 
Yikes said:
If the break room was used solely by an employee as their "workstation" - -for example, you had a barista employee using the sink to make coffee for employees - - then it would not need to be accessible. The rest of this response assumes this is not the case, and it's a true breakroom:

1. Even if you were not doing any alteration projects, you have an ongoing obligation under ADA Title III (assuming it's a private business) to provide "readily achievable barrier removal". This is a subjective phrase, in that it is partially depended on the financial means of the landlord and/or tenant. If you are billionaires, you can probably afford it. A 36" high sink is considered a "barrier" to use of the sink.

2. Once you start doing an alteration, then you need to make the alteration itself accessible, and you need to make the "path of travel" to the alteration accessible unless it is technically infeasible to do so. The definition of "path of travel" in ADA 202.4 includes restrooms; it does not necessarily include break rooms. So if I were you, I'd prioritize spending towards the restrooms before spending it on break rooms.

My main point here is that spending 20% on ADA improvements does not necessarily grant you immunity from potential lawsuits.
But the inverse is true: when you decide to do an alteration, not spending 20% on path-of-travel improvements can make you an attractive target for a lawsuit.
Click to expand...
Very well put !!!
 
Nicole Brooks said:
I have a tenant space that has an existing break room. The sink in the break room is at 36" a.f.f., not 34". The building itself was built in 2004. The tenant space is a business use and not open to the public. I'm not sure of the provenance of the space, it is possible that there was an additional break area when the suite was larger that did meet the code, but has been subdivided at some point in the last 20 years. What is my responsibility as the architect in complying with ada, is it 20% of construction costs towards accessibility? If that is the case, can that 20% be used elsewhere in the building? The tenant does not want to incur the cost of making the break room sink accessible. Can I use that money towards the public restrooms, as I found several items that do not meet code there as well as a breakroom sink in another space space that is also at 36" a.f.f.? Or is all of this moot because everything in the building should have met the code to begin with, in which case it is the landlords responsibility to fix everything?
Click to expand...

What is the nature of your project? New tenant? Change of occupancy? Change of occupancy classification? Alteration? If an alteration, which method of IEBC compliance are you using?

In fact -- according to UpCodes, Maryland has adopted the IEBC but Baltimore has not. Where is the project located, and what codes apply? You mention the 20% rules, but that's in the IEBC -- they moved it out of the IBC a couple or three cycles ago.
 
Yankee Chronicler said:
What is the nature of your project? New tenant? Change of occupancy? Change of occupancy classification? Alteration? If an alteration, which method of IEBC compliance are you using?

In fact -- according to UpCodes, Maryland has adopted the IEBC but Baltimore has not. Where is the project located, and what codes apply? You mention the 20% rules, but that's in the IEBC -- they moved it out of the IBC a couple or three cycles ago.
Click to expand...
The space is in Howard County which is under the 2021 IBC / IEBC, it is a level II alteration - prescriptive method. No change of occupancy, just new tenant.
 
Yankee Chronicler said:
Unpossible. Level 1, Level 2, and Level 3 apply only to the Work Area method.
Click to expand...
Sorry, yes, work area method. But which method I use in the IEBC isn't really the issue, I am more concerned with my responsibility of providing a fully accessible space in a building that was built after the adoption of the 91' ada. There is no evidence that the tenant fit-out was ever actually permitted and even if it was, being permitted does not mean it complied. What is the architect's responsibility in such situations when they find an unsatisfactory condition in an existing building where it concerns ada?
 
Reasonable standard of care suggests informing property owners and business operators of the ongoing requirements applicable to public accommodations to remove barriers where it is readily achievable to do so. [28 C.F.R. § 36.304; See also 42 U.S.C. §12182(b)(2)(iv)&(v)]

Under the ADA, discrimination includes a failure to design and construct a facility that is readily accessible to and usable by individuals with disabilities
[42 U.S.C. § 12183(a)(l); 28 C.F.R. § 36.401(a)]

Requirements for Alterations

The ADA requires altered portions of a facility to be made accessible to, and usable by, individuals with disabilities. Any alteration that affects the usability of or access to an area of the facility that contains a primary function must also be constructed so that the path of travel to the altered area be accessible to, and usable by, individuals with disabilities. If a facility is altered in a manner that affects its usability, then the alteration, to the maximum extent feasible, must make the altered portions of the facility and the path of travel elements serving the altered area readily accessible to and usable by individuals with disabilities. [42 U.S.C. § 12183(a)(2)]

Alteration affecting a “primary function” of a facility must consider “path of travel” elements serving the altered area (including accessible routes, bathrooms, telephones, drinking fountains, break rooms and other features that serve the primary function area being altered) so as to make it accessible to, and usable by, individuals with disabilities. This must be achieved to the maximum extent feasible, as long as the scope and cost of these alterations required under the ADA are not disproportionate to the overall cost of the alterations. [42 U.S.C. § 12183(a)(2); 28 C.F.R. § 36.403]

Primary function is defined in the regulations as a “major activity for which the facility is intended.” Areas serving public customers, meeting rooms and offices and other work areas in business facilities where the purpose of the facility is carried out are primary function areas. Primary function definition does not include alterations to such ancillary facilities as mechanical rooms, boiler rooms, supply rooms, or to employee break rooms, supply closets, entrances, corridors and restrooms, entry vestibules, etc. [28 C.F.R. § 36.403(b)]

Path of travel. [28 C.F.R. § 36.403(e)]

A “path of travel” includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility.

An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.

The term “path of travel” also includes the restrooms, telephones, and drinking fountains serving the altered area.
 
Nicole Brooks said:
Sorry, yes, work area method. But which method I use in the IEBC isn't really the issue, I am more concerned with my responsibility of providing a fully accessible space in a building that was built after the adoption of the 91' ada. There is no evidence that the tenant fit-out was ever actually permitted and even if it was, being permitted does not mean it complied. What is the architect's responsibility in such situations when they find an unsatisfactory condition in an existing building where it concerns ada?
Click to expand...

Section 306 of the IEBC. If you are using the work area method, if you don't plan any alterations to the break room, then it's not part of the work area. nder the Work Area Method, the work area is not necessarily the tenant demising limits. Read the definition.

But -- you mentioned the 20% rule. The 20% rule applies to making the route to an altered area "containing a primary function" accessible, and it defines the accessible route as including the toilet rooms and drinking fountains serving the primary function area. In a business occupancy the primary function is performing whatever business they do -- lawyers, accountants, even (gasp!) engineers and architects. I would not classify a break room in an office as an area containing a primary function. Therefore, I don't view the IEBC as requiring any changes to the break room to improve accessibility. However, the new tenant should be advised that they might be required to make changes at any time to accommodate an employee with a disability, so making the break room as compliant as possible now might be money well spent.
 
While the break room is, in and of itself, not a primary function area, it provides a support function to the primary function area. The break room, in the instance described, is ancillary to and thus considered subject to consideration for removal of barriers in the path-of-travel to the extent that removal of barriers is not disproportionate to the overall cost of the project. Removal of barriers when it is readily achievable is ongoing and must be undertaken regardless of whether an alteration is planned.

As Yankee aptly stated, employee work areas are subject to reasonable accommodation requests under Title I of the ADA. Employee common use areas, including toilet facilities, conference rooms, break rooms, and the like, are subject to accessibility requirements similar to those in public accommodations.

Chapter 8 in the 2010 ADA addresses Special Rooms, Spaces, and Elements. Various types of occupancies and spaces are addressed in Chapter 8. These include:
kitchens and kitchenettes (804). The 2010 ADA using the 2004 ADA Accessibility Guidelines are structured to make provisions for certain types of facilities or
spaces more integral to the ADA standards as a whole. The requirements found in Chapter 8 were reorganized to clarify the application of requirements
for certain types of spaces , such as kitchens and kitchenettes in employee break rooms, but without respect to the overall facility occupancy. For example,
specifications for kitchens and kitchenettes apply whether such spaces are located in a hotel guest room, a common use kitchen in public housing, or an employee break room. This differs from the original guidelines which addressed kitchens and kitchenettes only in relation to transient lodging facilities and, in the case of the ABA guidelines, dwelling units.

The employee break room is subject to the technical requirements ADA Section 804 and scoping requirements of ADA Section 202.

202.3 Alterations. Where existing elements or spaces are altered, each altered element or space shall comply with the applicable requirements of Chapter 2.

EXCEPTIONS:
1. Unless required by 202.4, where elements or spaces are altered and the circulation path to the altered element or space is not altered, an accessible route shall not be required.
2. In alterations, where compliance with applicable requirements is technically infeasible, the alteration shall comply with the requirements to the maximum extent feasible.
3. Residential dwelling units ...

Advisory 202.3 Alterations. Although covered entities are permitted to limit the scope of an alteration to individual elements, the alteration of multiple elements within a room or space may provide a cost-effective opportunity to make the entire room or space accessible. Any elements or spaces of the building or facility that are required to comply with these requirements must be made accessible within the scope of the alteration, to the maximum extent feasible. If providing accessibility in compliance with these requirements for people with one type of disability (e.g., people who use wheelchairs) is not feasible, accessibility must still be provided in compliance with the requirements for people with other types of disabilities (e.g., people who have hearing impairments or who have vision impairments) to the extent that such accessibility is feasible.
 
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