News from the NORTHWEST ADA CENTER – IDAHO

impassable-berm I have had several calls and emails in the last couple of weeks about snow and who is responsible to remove it. I have been stuck both in my vehicle and wheelchair because of the amount of snow we are experiencing. The following information provides an overview on the responsibilities of a local business and government to remove the snow.
What obligation does a public agency have regarding snow removal in its walkways?
Clearing snow from accessible parking spaces and the accessible route may be essential to provide access to programs, services or activities. Public entities must maintain its walkways in an accessible condition, with only isolated or temporary interruptions in accessibility. 28 CFR §35.133. Part of this maintenance obligation includes reasonable snow removal efforts.
Nondiscrimination on the Basis of Disability in State and Local Government Services § 35.133 Maintenance of accessible features
(a) A public entity shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
(b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. (Go to the following link for Title II regulations
What day-to-day maintenance is a public agency responsible for under the ADA?
As part of maintenance operations, public agencies’ standards and practices must ensure that the day-to-day operations keep the path of travel on pedestrian facilities open and usable for persons with disabilities, throughout the year. This includes snow removal, as noted above, as well as debris removal, maintenance of accessible pedestrian walkways in work zones, and correction of other disruptions. Identified accessibility needs should be noted and incorporated into the transition plan.
When weather conditions such as snow and ice limit or prevent access to services, programs, and activities, a town that houses programs in an accessible facility will have to maintain access to ensure that those programs are accessible. Maintenance of accessible features would include the removal of snow from accessible parking spaces, parking space access aisles, the accessible route to the accessible entrance, and accessible entrances. Although temporary interruptions in services due to bad weather are expected, alternate services should be provided if snow and ice can’t be cleared in a timely manner.
How a jurisdiction handles snow removal from sidewalks and paved shared-use paths is also an ADA issue. Snow removal is treated differently because of its temporary nature and because responsibility for clearing the snow is diffused. However, there is a legal obligation to remove snow within a reasonable period of time. Most jurisdictions need to have a plan in place to do it, and snow removal programs must include clearing curb ramps. Snow-blocked curb ramps due to plowing are an ADA issue. ADA complaints and issues related to snow removal involve response times and proper clearing:

  • Many complaints are received when snow is plowed into accessible parking spaces for storage.
  • Many snow removal complaints come from residential areas, such as apartment buildings. If management does not clear sidewalks or parking lots, disabled individuals may be imprisoned in their apartments. Many more do not complain because they are afraid of possible negative repercussions.
  • Snow-blocked curb cuts due to plowing are an ADA issue.

The ADA generally does not require a State or local government entity to provide additional services for individuals with disabilities that are not provided for individuals without disabilities.  For example, the ADA does not require a city government to provide snow removal service for the private driveways of residents with disabilities, if the city does not provide such service for residents without disabilities. However the local entity needs to be careful and not pile up the snow in the public right away preventing individuals from getting out of their driveways.

In the Department of Justice, “ ADA Guide for Small Towns” describes the importance of maintenance of accessible features. Towns must maintain in operable working condition those features that are necessary to provide access to services, programs, and activities – including elevators and lifts, curb ramps at intersections, accessible parking spaces, ramps to building or facility entrances, door hardware, and accessible toilet facilities. Isolated or temporary interruptions in service or access are permitted for maintenance or repairs.

One of the examples used in the guide discusses when weather conditions such as snow and ice limit or prevent access to services, programs, and activities, a town that houses programs in an accessible facility will have to maintain access to ensure that those programs are accessible. Maintenance of accessible features would include the removal of snow from accessible parking spaces, parking space access aisles, the accessible route to the accessible entrance, and accessible entrances. Although temporary interruptions in services due to bad weather are expected, alternate services should be provided if snow and ice cannot be cleared in a timely manner. (https://www.ada.gov/smtown.htm#anchor20083)

What responsibility does a business have to remove snow?
A business maybe responsible to remove snow under local laws or municipal ordinances. Additionally, a business might have the responsibility under the terms of its commercial lease to remove snow.  Depending on local codes most businesses understand they are responsible for clearing the sidewalk. But in many cases they draw the line where the sidewalk ends and the street begins. Local governments and municipalities are responsible for clearing the streets.” After a major snowstorm, the dividing line between the street and the sidewalk gets confusing. The snow plows create the problem by pushing the snow away from the center of the street toward the sides.  As a result, a pedestrian may safely traverse an entire sidewalk only to find crossing the street near impossible. Invariably a 3 to 8″ thick and up to 6′ long section of slush, frozen ice and snow exists between the end of the sidewalk and the center of the street where the snowplows have cleared. Although no one really addresses this directly in the ADA regulations, the homeowner, landlord, business owner should consider this part of their pathway/sidewalk, and maintain a clear pathway.
Regardless of laws, or lease terms, the business might be responsible for snow removal under the Americans with Disabilities Act.  The ADA states that a route into a business must be made accessible and usable to people with disabilities.  Not just the sidewalk – a route includes the disabled parking spaces, pathways from parking to sidewalk and pathway to the entrance.  Accumulations of snow and ice might make it impossible for someone using a wheelchair or walker to get into the business.  The ADA points out that temporary or isolated periods of inaccessibility can happen but must not exist beyond a reasonable period of time. The best advice for businesses is to keep pathways and disabled parking spaces clear of snow.

Wishing you safe travels and a Happy New Year!

dana-gover

Dana Gover, MPA, and ACTCP Certification, ADA Training and Technical Assistance Coordinator 

For more information about ADA Technical Assistance visit the NW ADA Center Idaho website: nwadacenter.org/idaho

Email:dananwadacenteridaho@gmail.com
Phone: Voice and Text 208-841-9422
Idaho Relay Service: 711