By Paul Kehoe and Minh Vu

As noted in an October 2013 blog post (here), more than three years have passed since the Department of Justice (“DOJ”) revised its regulations requiring businesses and state and local governments (“covered entities”) to allow the use of other power-driven mobility devices (“OPDMDs”) in their facilities by individuals with mobility disabilities.  Unlike wheelchairs and scooters, OPDMDs are mobility devices that are not designed primarily for use by people with mobility disabilities (e.g., Segways™ and golf carts).  Last month, the DOJ issued its first full technical guidance document on this topic.  Our takeaway from this recent guidance is that DOJ does not want covered entities limiting the use of OPDMDs, especially Segways, unless there is a very good reason to do so.  DOJ also expects covered entities to develop written policies and rules for OPDMD use and train their employees on how to implement those policies.

The guidance restates the five assessment factors that covered entities should analyze when determining whether the use of a particular OPDMD type should be permitted in a particular facility by people with mobility disabilities.  They are: (i) the type, size, weight, dimensions and speed of the device, (ii) the facility’s pedestrian traffic (which may vary depending on time of day, week, month or year), (iii) the facility’s design and operational characteristics (e.g., indoor vs. outdoor, size, placement of furniture and other stationary devices), (iv) whether legitimate safety requirements can be established to permit the safe operation of another OPDMD in that facility (e.g. speed limits, no permitted use on escalators), and (v) whether the use of that OPDMD creates a substantial environmental harm or conflicts with federal land management laws.   The DOJ reiterates that the safety risks must be based on “actual risks,” rather that speculation or stereotypes on how any particular device could be operated.  Overall, the DOJ concludes that based on these factors, “devices such as Segways™ can be accommodated in most instances.”

The DOJ states its expectation that, applying these factors, covered entities would determine that  “certain classes of OPDMDs” would likely be permitted virtually everywhere – in hospitals, shopping malls, home improvement stores with wide aisles, public parks, and amusement parks.  On cruise ships, DOJ stated that “certain classes of OPDMDs” would likely be allowed everywhere except in  constricted areas such as narrow passageways to cabins.  In small convenience stores or a small town manager’s office, DOJ expressed its view that access for OPDMDs might not be possible,  in which case  each entity would have to provide an alternative manner of service, such as curbside service or alternate meeting places.  Unfortunately, the DOJ did not specify what “classes of OPDMDs” it was referring to in these scenarios, nor did it specifically mention Segways in this analysis.

The DOJ also stated that covered entities can, in most cases, exclude all types of devices powered by fuel or combustion engines from indoor settings.  Large devices, such as golf carts, can likely be prohibited in narrow or crowded settings.  As such, covered entities may need to adopt different restrictions for different spaces within its facility.

The DOJ recommends that covered entities develop and publicize their rules for individuals with mobility disabilities using OPDMDs.  Such rules could include limiting operation to the speed of pedestrian traffic, identifying terms and circumstances of use, setting out instructions for passing through security screening machines if the OPDMD contains technology that could be damaged, and specifying the availability of storage for periods of non-use.

Finally, covered entities can ask an individual for “credible assurance” that a person is using an OPDMD because of a disability.  Credible assurance can be provided by showing a state-issued disability parking placard or other proof of disability, or by making a simple statement that the OPDMD is needed because of a mobility disability.  A covered entity must accept the statement as credible assurance unless the individual has engaged in conduct that contradicts this claim.  For instance, if an employee saw the person running and  jumping, the verbal assurance may not be credible and may be a basis for denying that person entry with the OPDMD.  However, the DOJ specifically notes that observing a person’s ability to walk short distances would not be enough to contradict a claim that the OPDMD is needed because of a mobility disability.  The DOJ also reiterates that a covered entity may not ask a person about his or her disability.

While somewhat helpful, the guidance does leave us wanting more. For example, DOJ could have addressed how a covered entity would prove that there are “legitimate safety requirements” based on “actual risk” that could support limitations on OPDMD use.  Would an accident involving an OPDMD be evidence of an actual risk?  Would covered entities without such evidence have to hire an expert to opine on the risks before limiting OPDMD use?  Would that be enough?  At the same time, the guidance is useful because it reveals DOJ’s pro-OPDMD stance.  For example, by stating that Segways can be accommodated in most instances, the DOJ seems to give little weight to studies and media reports about injuries relating Segway use (The Telegraph, CBS News, CBS Sports, NBC News). Thus, covered entities that do decide to limit OPDMD use should expect to be scrutinized by the DOJ and be ready to defend their position.

Edited by Kristina Launey