Seyfarth synopsis: Public accommodations planning to add EV charging stations to their properties should take note of these proposed guidelines and file comments by November 4, 2024.
Recognizing that more and more retailers, shopping malls, lodging facilities, gas stations, and restaurants are providing EV charging stations (“EVCS”) for customer use on their properties, the U.S. Access Board (“Access Board”) initiated a formal rulemaking process last week that proposed guidelines for EVCS accessibility (“EVCS Guidelines”) that would amend the requirements for buildings and facilities covered by the Americans with Disabilities Act (“ADA”). Once the Access Board completes its process, the U.S. Department of Justice (“DOJ”) will undertake its own rulemaking process to incorporate the new guidelines into the existing ADA Standards for Accessible Design and they will become legally binding standards for public accommodations. Because the ADA prohibits the DOJ from making any changes to Access Board final guidelines that would reduce accessibility, now is the time for public accommodations and covered entities to provide input by submitting comments by the November 4, 2024 deadline.
A brief summary of the major requirements are below.
What EVCS will be covered? Once the DOJ finalizes and adopts the proposed guidelines as legally binding regulations, the EVCS Guidelines will apply to all new EVCS. Existing EVCS will need to comply with the EVCS Guidelines when they are altered to the maximum extent feasible. As for ECVS that have already been installed when the ECVS Guidelines take effect, the DOJ will need to decide how the requirements will apply to them and if any modifications will be necessary. In similar prior situations where the DOJ has added newly covered existing elements to regulatory requirements — such as swimming pools and spas — the DOJ has required compliance within a certain time frame if it is readily achievable to do so.
How many accessible EV charging spaces are required? The EVCS Guidelines contain a chart setting forth the minimum number of required accessible EV charging spaces (“ACSs” or “ACS” singular) based on the total number of charging spaces provided at each EVCS. For example, if an EVCS has one to 25 charging spaces, then one must be accessible. If an EVCS has 26 to 50 charging spaces, then two must be accessible. If a property has different types of EVCS (e.g. DCFC chargers versus AC Level 2 chargers), then the number of required ACSs must be calculated separately for each EVCS type. The EVCS Guidelines also make clear that existing required accessible parking spaces cannot be turned into ACSs. However, similar to accessible parking, ACSs would display International Symbol of Accessibility (ISA) signage and be restricted to individuals with accessible parking placards.
Interestingly, the Access Board is asking for comment on a possible alternative approach that would require a greater number of ACSs, but none would be reserved for exclusive use by individuals with accessible parking placards. In this scenario, the ACSs would be marked to indicate that they are the last ones to be used by people who do not have an accessible parking placard. In its commentary, the Access Board expressed concern that this framework would be difficult, if not impossible to enforce, and would increase the costs of the regulation.
Where must the accessible EV charging spaces be located? Recognizing that new EVCSs will most likely be added to existing parking lots and their location may be dictated by existing infrastructure, the EVCS Guidelines do not require that ACSs be located on the shortest route to the nearest accessible entrance to a public accommodations facility. The ACSs need only be the closest to the accessible entrance relative to non-accessible charging spaces. For example, if there are two ACSs in a group of ten charging spaces, those ACSs need to be the two that are closest to the facility entrance.
The EVCS Guidelines do require that ACSs be connected to the facility entrance on the same site by an accessible route. Additionally, where there is a pedestrian route between the EVCS and so-called “site arrival” points, such as public sidewalks and transportations stops, that route must be accessible as well. Complying with these accessible route requirements could be quite expensive, or possibly infeasible, for public accommodations seeking to add new EVCS to an existing parking lot with excessive slopes, or where for infrastructure, safety, or practical reasons, EVCS need to be located far away from the facility entrance or other site amenities.
What does an accessible EV charging space look like? The EVCS Guidelines require ACSs to be at least 132” wide, 240” long, and 98” high and adjacent 5’ wide access aisle. Both the space and access aisle must be level (i.e. have slopes no greater than 1:48), except where in-ground connectors are used in the charging space. ACSs must also display the ISA symbol, much like current accessible parking spaces. The EVCS Guidelines also contain special rules for pull-through charging spaces where drivers do not need to exit the vehicle.
What are the physical accessibility requirements for EV chargers? EV chargers serving ACSs must comply with existing ADA requirements for clear floor/ground space, reach range, and operable parts. In addition, the EV charger must have a screen that can be viewed at 40” above the ground.
What are the effective communication requirements for EV chargers? The EVCS Guidelines require that every EV charger – not just the ones serving ACSs – have the following communications features: (1) volume control; (2) status indicators that are both visually discernable for the deaf, as well as discernable by touch or sound for those with low vision; (3) a method other than color to communicate information for the color blind; (4) audible signals that are conveyed visually or with a tactile indication; (5) if provided, two-way communication that is usable by the deaf or hard of hearing; and (6) if provided, real-time video that has sufficient quality to support communication with sign language. The Access Board does not state whether these features are available on any EV chargers available today.
Issues for public accommodations to consider now. As the above key provisions makes clear, regardless of the ultimate form of the regulations, there will be many requirements for EVCS. Public accommodations should comment on the EVCS Guidelines by November 4 if they disagree with any of the proposed requirements. Public accommodations that are installing EVCS now should try to ensure these proposed requirements are incorporated as they are not likely to change significantly between now and finalization.
