28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services (2010 ADA Title II Regulations with amendments issued through Aug. 2016)

Section 35.130(h) Safety. (Section-by-Section Analysis)

Section 36.301(b) of the 1991 title III regulation provides that a public accommodation ‘‘may impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks, and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.'' 28 CFR 36.301(b). Although the 1991 title II regulation did not include similar language, the Department's 1993 ADA Title II Technical Assistance Manual at II–3.5200 makes clear the Department's view that public entities also have the right to impose legitimate safety requirements necessary for the safe operation of services, programs, or activities. To ensure consistency between the title II and title III regulations, the Department has added a new § 35.130(h) in the final rule incorporating this longstanding position relating to imposition of legitimate safety requirements.