I don’t know what those rendered disabled a year ago by the Marathon bombers did for work. Hopefully, no physical barriers at their workplaces prevent them from returning to their chosen occupations. But I know that the law in Massachusetts does not require that all places of employment be accessible to people who want to work there. Factories and offices, so long as they are not open to clients and customers from the public, do not have to welcome employees with disabilities.
A bill now pending in the Legislature would change that. It has been filed and failed to pass for many years. Last year it passed the Senate and died in the House Ways and Means Committee. This year, it is stuck in the Senate. It must pass the Senate, pass the House, and be signed into law by the governor. It is an embarrassment that a state that prides itself in being a civil rights leader cannot pass a law that would open workplaces to people with disabilities. We must insure that staircases and narrow doorways don’t mean that those that can’t walk can’t work.
Many people don’t know that Massachusetts was way ahead of its time where people with physical disabilities are concerned. 22 years before the federal Americans with Disabilities Act was passed in 1990, Massachusetts law required that buildings open to the public be accessible. Since 1968 we have had the Architectural Access Board. The AAB’s enabling statute and regulations were “designed to provide full and free use of buildings and facilities so that persons with disabilities may have the education, employment, living and recreational opportunities necessary to be as self-sufficient as possible and to assume full responsibilities as citizens.”
The AAB’s regulations are much more effective than the ADA. The ADA is implemented by a costly and time-consuming civil rights lawsuit brought after an inaccessible building is already built or renovated when the barriers are difficult and expensive to undo. The AAB regulations are part of the building code, and are enforced by local building inspectors across the state at the time the building in their town is originally constructed or remodeled. The local inspector shouldn’t grant an occupancy permit unless the building either complies with the regulations or has gotten a variance. The AAB’s charge is to grant a variance, if it is proven that it is technologically infeasible to remove a barrier to accessibility, or that its removal would mean excessive cost without substantial benefit to persons with disabilities.
But the AAB’s jurisdiction has a fatal flaw. It does not extend to places where people work unless they are open to the public.
The federal ADA applies to workplaces. Employers must make reasonable accommodations to disabled employees. The AAB law, enforced at the time of original construction, is not congruent to the ADA in this respect, and others. This incongruence is unfair not only to employees but also to architects and building owners and must be remedied.
I am an attorney and a wheelchair-user who has served on the AAB for the past five years. Other members include architects, building inspectors, construction experts, senior community representatives, and state and town officials. Every other week the nine volunteer members of the Board spend the day making thoughtful decisions that determine how welcoming buildings across this state — restaurants, schools, churches and synagogues, apartment buildings, theaters, libraries, town halls — will be to people with mobility impairments.
The Board’s variance process makes sense in many respects. If a builder proves that the cost of putting in an elevator is excessive and that those with disabilities will be accommodated, we may grant a variance to our regulations that require vertical access. If it is impossible to build a ramp to a high historical entrance and a welcoming alternative accessible one is proposed, we might grant a variance to our requirement that all public entrances be accessible.
But it does not make sense that we have to grant variances permitting buildings to exclude people with disabilities from employment--not because it is infeasible, or because the cost outweighs the benefit, but simply because the inaccessible spaces are workplaces that are not open to the public.
A local university spent over 7 million dollars to rehabilitate an antique building. There were offices on the upper floors. They didn’t want to put in an elevator. The university president swore in an affidavit that the offices were “employee-only” spaces. We had to grant them a variance making it impossible for anyone in a wheelchair to work in those offices. The disability coordinator worked on one of those upper floors!
On Nantucket, a lodging house for hotel employees was being renovated. Employees who couldn’t walk couldn’t get in or to the rooms. We had to let those barriers to employment for disabled people stand.
Why would anyone be against the bill? Perhaps they think it would be too expensive to make employment areas accessible or perhaps they are worried about disrupting historic building details?
If AAB jurisdiction is expanded to include employee spaces, those requirements will be subject to the same thoughtful process that ensures that if the removal of a barrier is impossible, or if there is a less costly way to accomplish the goal of accessible employment, variances will be granted.
It is less costly to provide for accessibility when a building is constructed than after an ADA lawsuit brought when it is long finished.
It is also less expensive to have the AAB regulations and the ADA be equivalent. Right now, one can follow the former only to be sued under the latter.
Officials speak about insuring employment of people with disabilities and putting our injured veterans back to work. If people can’t get in to their factories and offices, these are just words. Wouldn’t it be fitting for Massachusetts to finally pass a law welcoming workers with disabilities on the eve of the anniversary of the horrific attack which suddenly left so many with physical challenges?Carol R. Steinberg is an attorney, a member of the Massachusetts Architectural Access Board, president of the Board of the Disability Law Center, and a member of the Government Relations Committee of the Massachusetts Multiple Sclerosis Society.