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The ADA "Grandfather Clause"

ADA Grandfather Clause: Is my Building Safe?

Contrary to popular belief, there is no actual “grandfather” clause within the ADA. However, the law does offer flexibility and alternatives. City governments are mandated to adhere to Title II of the ADA, ensuring that individuals with disabilities have access to the entirety of city services and buildings. While providing access, city governments are not compelled to take actions that would alter the nature of their operations, or something that will cause financial or administrative burdens. This shows the importance of balancing accessibility requirements with practical considerations on cities.

ada grandfather clause

Safe Harbor Vs. ADA Grandfather CLause

The ADA does not include a provision for “grandfathering” facilities, but it does have a provision known as “safe harbor” in the 2010 ADA. The “safe harbor” clause allows for businesses to adhere to previous ADA standards if the building was built before new ADA laws come into place. For example, if a building is compliant to 1991 ADA standards and was constructed prior to the implementation of the 2010  ADA, when there is a change in the ADA law, that property does not need to be furhter modified to meet current standards. This exemption applies to each element individually. However, if alterations are made to elements that were compliant with the 1991 ADA Standards, those altered elements must adhere to the 2010 ADA Standards.

ADA Grandfather Clause: Federal vs. Local Law

Despite common beliefs the reality remains that federal law supersedes local regulations in the context of the ADA. This misunderstanding often results in a failure to provide necessary programs or implement necessary modifications to policies so a city conforms to the ADA. Consequently, it’s imperative to recognize that the ADA is a federal law, prevailing over local laws under the Constitution. While city permits and inspectors focus on local regulations, they may accidentially certify architectural features that comply with local law but violate ADA requirements. Property owners and managers must be vigilant, understanding that city permits and what is required by federal ADA law in order to provide access to all. 

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