ADVISING YOUR
CLIENTS ON THE FEDERAL
AMERICANS WITH DISABILITIES
ACT
Please refer to "CLE ACTIVITY NOTES" following activity for notes on additional substantive written materials
The Federal Americans with Disabilities Act (ADA, 42 USC 12101 Et
Seq.) is a statute intended to prohibit the exclusion of people with disabilities
from utilizing businesses that serve the public, referred to in the statute
as “public accommodations”, or from discrimination in
employment.
The provisions of the ADA may impact on your business clients in
either or both of two ways:
Of importance to your business clients are the potential penalties
for violations of the ADA. Here’s what the Department of Justice has
to say about it’s enforcement of Title III of the
ADA:
“The Department of Justice may file lawsuits in federal court to enforce the ADA, and courts may order compensatory damages and back pay to remedy discrimination if the Department prevails. Under title III, the Department of Justice may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.”
OVERVIEW OF THE ADA:
ADA, TITLE I:
Title I of the Americans with Disabilities Act prohibits discrimination in employment against persons with disabilities in businesses having 15 or more employees, or by State and local governments. Title I with respect to private employers is enforced by the Equal Employment Opportunity Commission (EEOC).
Title I of the of
ADA prohibits private employers, state and local
governments, employment agencies and labor unions from discriminating against
qualified individuals with disabilities in job application procedures, hiring,
firing, advancement, compensation, job training, and other terms, conditions,
and privileges of employment.
The ADA covers employers with 15 or more employees, including state
and local governments. It also applies to employment agencies and to labor
organizations. The ADA's nondiscrimination standards also apply to federal
sector employees under section 501 of the Rehabilitation Act, as amended,
and its implementing rules.
Title I provides an individual with a disability
is a person who:
A qualified
employee or applicant with a disability is an individual who, with or without
reasonable accommodation, can perform the essential functions of the job
in question.
As regards
such individuals with a disability, the act provides that reasonable
accommodation may include, but is not limited to:
An employer
is required to make a reasonable accommodation to the known disability of
a qualified applicant or employee if it would not impose an "undue hardship"
on the operation of the employer's business. Undue hardship is defined as
an action requiring significant difficulty or expense when considered in
light of factors such as an employer's size, financial resources, and the
nature and structure of its operation.
An employer
is not required to lower quality or production standards to make an
accommodation; nor is an employer obligated to provide personal use items
such as glasses or hearing
aids.
Title I of the ADA also covers:
Title
I of the act also makes it unlawful to retaliate against an individual for
opposing employment practices that discriminate based on disability or for
filing a discrimination charge, testifying, or participating in any way in
an investigation, proceeding, or litigation under the
ADA. One reason it may make sound business sense for your client to comply with Title I can be found in the Equal Employment Opportunity Commission’s statement:
“In Fiscal Year 2004, EEOC received 15,376
charges of disability discrimination. EEOC resolved 16,949 disability
discrimination charges in FY 2004 and recovered $47.7 million in monetary
benefits for charging parties and other aggrieved individuals
(not including monetary benefits obtained through
litigation).”
EMPLOYER’S RESPONSIBILITIES UNDER TITLE I OF
THE
ADA:
The Americans
with Disabilities Act of 1990 (ADA) makes it unlawful
to discriminate in employment against a qualified individual with a disability.
The ADA also outlaws discrimination against individuals
with disabilities in State and local government services, public accommodations,
transportation and telecommunications. This booklet explains the part of
the ADA that prohibits job discrimination. This part of
the law is enforced by the U.S. Equal Employment Opportunity Commission and
State and local civil rights enforcement agencies that work with the
Commission.
WHAT EMPLOYERS ARE
COVERED?
Job
discrimination against people with disabilities is illegal if practiced
by:
The part of the
ADA enforced by the
EEOC outlaws job discrimination by all
employers, including State and local government employers, with 15 or more
employees after July 26, 1994.
Another
part of the ADA, enforced by the U.S. Department of Justice
(Title III), prohibits discrimination in State and local government programs
and activities, including discrimination by all State and local governments,
regardless of the number of employees, after January 26,
1992.
Because the ADA establishes overlapping responsibilities
in both EEOC and DOJ for employment by State and local
governments, the Federal enforcement effort will
be
coordinated
by EEOC and DOJ to avoid duplication in investigative
and enforcement activities. In addition, since some private and governmental
employers are already covered by nondiscrimination and affirmative action
requirements under the Rehabilitation Act of 1973, EEOC,
DOJ, and the Department of Labor will similarly coordinate the enforcement
effort under the ADA and the Rehabilitation
Act.
WHAT EMPLOYMENT PRACTICES ARE COVERED BY TITLE
I?
The
ADA makes it unlawful to discriminate based on disability
in all employment practices such as:
The
ADA prohibits an employer from retaliating against an
applicant or employee for asserting his rights under the
ADA. The Act also makes it unlawful to discriminate against
an applicant or employee, whether disabled or not, because of the individual's
family, business, social or other relationship or association with an individual
with a disability.
WHICH INDIVIDUALS ARE COVERED BY TITLE
I?
Title
I of the ADA protects qualified individuals with disabilities
from employment discrimination. Under the ADA, a person
has a disability if he has a physical or mental impairment that substantially
limits a major life activity. The ADA also protects
individuals who have a record of a substantially limiting impairment, and
people who are regarded as having a substantially limiting
impairment.
To be
protected under the ADA, an individual must have, have
a record of, or be regarded as having a substantial, as opposed to a minor,
impairment. A substantial impairment is one that significantly limits or
restricts a major life activity such as hearing, seeing, speaking, breathing,
performing manual tasks, walking, caring for oneself, learning or
working.
An individual
with a disability must also be qualified to perform the essential functions
of the job with or without reasonable accommodation, in order to be protected
by the ADA. This means that the applicant or employee
must:
The
ADA does not interfere with your right to hire the best
qualified applicant. Nor does the ADA impose any affirmative
action obligations. The ADA simply prohibits you from
discriminating against a qualified applicant or employee because of her
disability.
HOW ARE ESSENTIAL FUNCTIONS
DETERMINED?
Essential
functions are the basic job duties that an employee must be able to perform,
with or without reasonable accommodation. You should carefully examine each
job to determine which functions or tasks are essential to performance. (This
is particularly important before taking an employment action such as recruiting,
advertising, hiring, promoting or firing).
Factors
to consider in determining if a function is essential
include:
Your
judgment as to which functions are essential, and a written job description
prepared before advertising or interviewing for a job will be considered
by EEOC as evidence of essential functions. Other kinds
of evidence that EEOC will consider
include:
WHAT ARE AN EMPLOYER’S OBLIGATIONS TO
PROVIDE REASONABLE ACCOMODATIONS?
“Reasonable
accommodation” is any change or adjustment to a job or work environment
that permits a qualified applicant or employee with a disability to participate
in the job application process, to perform the essential functions of a job,
or to enjoy benefits and privileges of employment equal to those enjoyed
by employees without disabilities. For example, reasonable accommodation
may include:
Reasonable
accommodation also must be made to enable an individual with a disability
to participate in the application process, and to enjoy benefits and privileges
of employment equal to those available to other
employees.
It is
a violation of the ADA to fail to provide reasonable
accommodation to the known physical or mental limitations of a qualified
individual with a disability, unless to do so would impose an undue hardship
on the operation of your business. Undue hardship means that the accommodation
would require significant difficulty or
expense.
WHAT IS THE BEST WAY TO IDENTIFY A REASONABLE
ACCOMMODATION?
Frequently,
when a qualified individual with a disability requests a reasonable
accommodation, the appropriate accommodation is obvious. The individual may
suggest a reasonable accommodation based upon her own life or work experience.
However, when the appropriate accommodation is not readily apparent, the
employer must make a reasonable effort to identify one. The EEOC recommends
“The best way to do this is to consult informally with the applicant
or employee about potential accommodations that would enable the individual
to participate in the application process or perform the essential functions
of the job”.
If this
consultation does not identify an appropriate accommodation, an employer
can contact the EEOC, State or local vocational rehabilitation
agencies, or State or local organizations representing or providing services
to individuals with disabilities. Another resource is the Job Accommodation
Network (JAN). JAN is a free consultant
service that helps employers make individualized accommodations. The telephone
number is
1-800-526-7234.
WHEN DOES A REASONABLE ACCOMMODATION BECOME AN UNDUE
HARDSHIP?
It is
not necessary for an employer to provide a reasonable accommodation if doing
so would cause an undue hardship. The EEOC defines “Undue hardship”
as meaning that an accommodation would be unduly costly, extensive, substantial
or disruptive, or would fundamentally alter the nature or operation of the
business.
Among
the factors to be considered by the EEOC in determining whether an accommodation
is an undue hardship are the cost of the accommodation, the employer's size,
financial resources and the nature and structure of its
operation.
If a
particular accommodation would be an undue hardship, the employer must try
to identify another accommodation that will not pose such a hardship. If
cost causes the undue hardship, an employer must also consider whether funding
for an accommodation is available from an outside source, such as a vocational
rehabilitation agency, and if the cost of providing the accommodation can
be offset by state or federal tax credits or deductions. Employers must also
give the applicant or employee with a disability the opportunity to provide
the accommodation or pay for the portion of the accommodation that constitutes
an undue
hardship.
CAN AN EMPLOYER REQUIRE MEDICAL EXAMINATIONS OR ASK
QUESTIONS ABOUT AN INDIVIDUAL'S DISABILITY?
It is
unlawful to:
Employers
can ask an applicant questions about ability to perform job-related functions,
as long as the questions are not phrased in terms of a disability. An employer
can also ask an applicant to describe or to demonstrate how, with or without
reasonable accommodation, the applicant will perform job-related
functions.
After
a job offer is made and prior to the commencement of employment duties, employers
may require that an applicant take a medical examination, if everyone who
will be working in the same job category for that employer must also take
the examination.
An employer
may condition the job offer on the results of the medical examination. However,
if an individual is not hired because a medical examination reveals the existence
of a disability, the employer must be able to show that the reasons for exclusion
are job related and necessary for conduct of the business. An employer also
must be able to show that there was no reasonable accommodation that would
have made it possible for the individual to perform the essential job
functions.
Once
the employer has hired an applicant, it cannot require a medical examination
or ask an employee questions about disability unless the employer can show
that these requirements are job related and necessary for the conduct of
it’s business. An employer may conduct voluntary medical examinations
that are part of an employee health program.
The results
of all medical examinations or information from inquiries about a disability
must be kept confidential, and maintained in separate medical files. Employers
may provide medical information required by State workers' compensation laws
to the agencies that administer such
laws.
DO INDIVIDUALS WHO USE ILLEGAL DRUGS HAVE RIGHTS
UNDER THE ADA?
Individuals
using drugs illegally are not protected by the ADA and
may be denied employment or discharged from employment on the basis of such
use. The ADA does not prevent employers from testing
applicants or employees for current illegal drug use, or from making employment
decisions based on verifiable results.
A test
for the illegal use of drugs is not considered a medical examination under
the ADA; therefore, it is not a prohibited pre-employment
medical examination and emplolyers do not have to show that the administration
of the test is job related and consistent with business necessity. The
ADA appears neutral on this subject, and does not encourage,
authorize or prohibit drug
tests.
HOW IS THE ADA BE ENFORCED AND
WHAT PENALTIES/REMEDIES ARE AVAILABLE?
The
provisions of the ADA which prohibit job discrimination
are enforced by the U.S. Equal Employment Opportunity Commission
(“EEOC”). Individuals who believe they have been discriminated
against on the basis of their disability can file a charge with the EEOC
at any of its offices located throughout the United States. A charge of
discrimination must be filed within 180 days of the discrimination, unless
there is a state or local law that also provides relief for discrimination
on the basis of disability. In those cases, the complainant has 300 days
to file a charge.
The EEOC
will investigate and initially attempt to resolve the charge through
conciliation, following the same procedures used to handle charges of
discrimination filed under Title VII of the Civil Rights Act of 1964. The
ADA also incorporates the remedies contained in Title
VII. These remedies include hiring, promotion, reinstatement, back pay, and
attorneys fees. Reasonable accommodation is also available as a remedy under
the
ADA.
WILL THE EEOC ASSIST EMPLOYERS
WITH COMPLIANCE WITH THE ADA?
The
EEOC’S stated position is that it “believes that employers want
to comply with the ADA, and that if they are given sufficient
information on how to comply, they will do so
voluntarily”.
Accordingly,
the EEOC conducts an active technical assistance program to promote voluntary
compliance with the ADA. This program is designed to help
employers understand their responsibilities and assist people with disabilities
to understand their rights and the law.
The
EEOC has published a Technical Assistance Manual (provided
as part of the substantive written materials accompanying this CLE activity),
providing practical application of legal requirements to specific employment
activities, with a directory of resources to aid compliance. The EEOC technical
assistance program is separate and distinct from its enforcement
responsibilities. The EEOC says “Employers who seek information or
assistance from the Commission will not be subject to any enforcement action
because of such inquiries”.
The
Commission also has a public policy that recognizes that differences and
disputes about the ADA requirements may arise between
employers and people with disabilities as a result of misunderstandings.
Feeling that such disputes frequently can be resolved more effectively through
informal negotiation or mediation procedures, rather than through the formal
enforcement process of the ADA. Therefore, the
EEOC does encourage efforts to settle such differences
through alternative dispute resolution, providing that such efforts do not
deprive any individual of legal rights provided by the
statute.
FOLLOWING ARE SOME “FREQUENTLY ASKED TITLE I
QUSTIONS” AND ANSWERS FROM THE EEOC:
Your clients may have additional questions. The
following questions and answers have been provided from the Equal Employment
Opportunity Commission:
Q. If I have several qualified applicants for a job, does the
ADA require that
I hire the applicant with a
disability?
A. No.
You may hire the most qualified applicant. The ADA only
makes it unlawful for you to discriminate against a qualified individual
with a disability on the basis of disability.
Q. One of my employees is a diabetic, but takes insulin daily to control
his diabetes. As a result, the diabetes has no significant impact on his
employment. Is he protected by the
ADA?
A. Yes.
The determination as to whether a person has a disability under the
ADA is made without regard to mitigating measures, such
as medications, auxiliary aids and reasonable accommodations. If an individual
has an impairment that substantially limits a major life activity, she is
protected under the ADA, regardless of the fact that the
disease or condition or its effects may be corrected or
controlled.
Q. One of my employees has a broken arm that will heal but is temporarily
unable to perform the essential functions of his job as a mechanic. Is this
employee protected by the
ADA?
A. No.
Although this employee does have an impairment, it does not substantially
limit a major life activity if it is of limited duration and will have no
long term effect.
Q. Am I obligated to provide a reasonable accommodation for an individual
if I am unaware of her physical or mental
impairment?
A. No.
An employer's obligation to provide reasonable accommodation applies only
to known physical or mental limitations. However, this does not mean that
an applicant or employee must always inform you of a disability. If a disability
is obvious, e.g., the applicant uses a wheelchair, the employer "knows" of
the disability even if the applicant never mentions it.
Q. How do I determine whether a reasonable accommodation is appropriate
and the type of accommodation that should be made
available?
A. The
requirement generally will be triggered by a request from an individual with
a disability, who frequently can suggest an appropriate accommodation.
Accommodations must be made on a case-by-case basis, because the nature and
extent of a disabling condition and the requirements of the job will vary.
The principal test in selecting a particular type of accommodation is that
of effectiveness, i.e., whether the accommodation will enable the person
with a disability to perform the essential functions of the job. It need
not be the best accommodation or the accommodation the individual with a
disability would prefer, although primary consideration should be given to
the preference of the individual involved. However, as the employer, you
have the final discretion to choose between effective accommodations, and
you may select one that is least expensive or easier to
provide.
Q. When must I consider reassigning an employee with a disability to
another job as a reasonable
accommodation?
A. When
an employee with a disability is unable to perform her present job even with
the provision of a reasonable accommodation, you must consider reassigning
the employee to an existing position that she can perform with or without
a reasonable accommodation. The requirement to consider reassignment applies
only to employees and not to applicants. You are not required to create a
position or to bump another employee in order to create a vacancy. Nor are
you required to promote an employee with a disability to a higher level
position.
Q. What if an applicant or employee refuses to accept an accommodation
that I
offer?
A. The
ADA provides that an employer cannot require a qualified
individual with a disability to accept an accommodation that is neither requested
nor needed by the individual. However, if a necessary reasonable accommodation
is refused, the individual may be considered not
qualified.
Q. If our business has a health spa in the building, must it be accessible
to employees with
disabilities?
A. Yes.
Under the ADA , workers with disabilities must have equal
access to all benefits and privileges of employment that are available to
similarly situated employees without disabilities. The duty to provide reasonable
accommodation applies to all non-work facilities provided or maintained by
you for your employees. This includes cafeterias, lounges, auditoriums,
company-provided transportation and counseling services. If making an existing
facility accessible would be an undue hardship, you must provide a comparable
facility that will enable a person with a disability to enjoy benefits and
privileges of employment similar to those enjoyed by other employees, unless
this would be an undue hardship.
Q. If I contract for a consulting firm to develop a training course
for my employees, and the firm arranges for the course to be held at a hotel
that is inaccessible to one of my employees, am I liable under the
ADA?
A. Yes.
An employer may not do through a contractual or other relationship what it
is prohibited from doing directly. You would be required to provide a location
that is readily accessible to, and usable by your employee with a disability
unless to do so would create an undue hardship.
Q. What are my responsibilities as an employer for making my facilities
accessible?
A. As
an employer, you are responsible under Title I of the ADA
for making facilities accessible to qualified applicants and employees with
disabilities as a reasonable accommodation, unless this would cause undue
hardship. Accessibility must be provided to enable a qualified applicant
to participate in the application process, to enable a qualified individual
to perform essential job functions and to enable an employee with a disability
to enjoy benefits and privileges available to other employees. However, if
your business is a place of public accommodation (such as a restaurant, retail
store or bank) you have different obligations to provide accessibility to
the general public, under Title III of the ADA. Title
III also will require places of public accommodation and commercial facilities
(such as office buildings, factories and warehouses) to provide accessibility
in new construction or when making alterations to existing structures. Further
information on these requirements may be obtained from the U.S. Department
of Justice, which enforces Title III. (See page 22).
Q. Under the
ADA, can an employer refuse
to hire an individual or fire a current employee who uses drugs
illegally?
A. Yes.
Individuals who currently use drugs illegally are specifically excluded from
the ADA's protections. However, the ADA
does not exclude:
Q. Does the
ADA
cover
people with
AIDS?
A. Yes.
The legislative history indicates that Congress intended the
ADA to protect persons with AIDS and
HIV disease from discrimination.
Q. Can I consider health and safety in deciding whether to hire an
applicant or retain an employee with a
disability?
A. The
ADA permits an employer to require that an individual
not pose a direct threat to the health and safety of the individual or others
in the work-place. A direct threat means a significant risk of substantial
harm. You cannot refuse to hire or fire an individual because of a slightly
increased risk of harm to himself or others. Nor can you do so based on a
speculative or remote risk. The determination that an individual poses a
direct threat must be based on objective, factual evidence regarding the
individual's present ability to perform essential job functions. If an applicant
or employee with a disability poses a direct threat to the health or safety
of himself or others, you must consider whether the risk can be eliminated
or reduced to an acceptable level with a reasonable accommodation.
Q. Am I required to provide additional insurance for employees with
disabilities?
A. No.
The ADA only requires that you provide an employee with
a disability equal access to whatever health insurance coverage you provide
to other employees. For example, if your health insurance coverage for certain
treatments is limited to a specified number per year, and an employee, because
of a disability, needs more than the specified number, the
ADA does not require that you provide additional coverage
to meet that employee's health insurance needs. The ADA
also does not require changes in insurance plans that exclude or limit coverage
for pre-existing conditions.
Q. Does the
ADA
require
that I post a notice explaining its
requirements?
A. The
ADA requires that you post a notice in an accessible format
to applicants, employees and members of labor organizations, describing the
provisions of the Act. EEOC will provide employers with
a poster summarizing these and other Federal legal requirements for
nondiscrimination. EEOC will also provide guidance on
making this information available in accessible formats for people with
disabilities.
ADDENDUM
Since
The Americans with Disabilities Act: Your Responsibilities as an
Employer was published, the Supreme Court has ruled that the
determination of whether a person has an ADA "disability" must take into
consideration whether the person is substantially limited in performing a
major life activity when using a mitigating measure. This
means that if a person has little or no difficulty performing any major life
activity because s/he uses a mitigating measure, then that person will not
meet the ADA's first definition of "disability." The Supreme Court's rulings
were in Sutton v. United Airlines, Inc., 527 U.S. ____ (1999), and
Murphy v. United Parcel Service, Inc., 527 U.S. ____
(1999).
As a
result of the Supreme Court's ruling, this document's guidance on mitigating
measures, found in the section "Additional Questions and Answers
on the Americans with Disabilities Act," is
superseded. Following the Supreme Court's ruling, whether
a person has an ADA "disability" is determined by taking into account the
positive and negative effects of mitigating measures used by the individual.
The Supreme Court's ruling does not change anything else in this
document.
For more
information on the Supreme Court rulings and their impact on determining
whether specific individuals meet the definition of "disability," consult
the Instructions for Field Offices: Analyzing ADA Charges After Supreme
Court Decisions Addressing "Disability" and "Qualified," which can be
found on EEOC's website at
www.eeoc.gov.
ADA, TITLE III:
Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation and commercial facilities. “Public accommodations” include commercial facilities and businesses whose operations affect interstate commerce, such as office buildings, factories, and warehouses. These “public accommodations” must:
They must also ensure effective communication through the use of auxiliary aids and services when necessary, unless an undue burden or fundamental alteration would result. In addition, “public accommodations” must remove architectural, structural and communication barriers in existing facilities where readily achievable, and provide goods and services through alternative measures when removal of barriers is not readily achievable. When public accommodations or commercial facilities design and construct new facilities, or alter existing facilities, they must do so in accordance with the Standards for Accessible Design. Title III is enforced by the U.S. Department of Justice.
(Title II of the ADA prohibits discrimination against persons with disabilities in State and local government services, programs, and activities. Title IV of the ADA mandates that telephone companies offer TTY/telephone relay services to enable individuals who use TTY's. This activity will not discuss either Title II or Title IV of the act.)
OVERVIEW OF TITLE III AND “PUBLIC ACCOMMODATION” AND “COMMERCIAL FACILITY” IMPACT OF THE ADA ON YOUR CLIENT’S BUSINESS: Who is Covered by Title III of the ADAThe title III regulation covers --
7
Public accommodations (i.e., private entities that own, operate,
lease, or lease to places of public accommodation),
7
Commercial facilities, and
7
Private entities that offer certain examinations and courses related
to educational and occupational certification.
The U.S. Department of Justice estimates that places of public accommodation
include over six million private establishments. These commercial facilities
are nonresidential facilities, but including office buildings, factories,
and warehouses whose operations affect interstate commerce. 7 Entities controlled by religious organizations, including places of worship, which are not covered, and 7 Private clubs are not covered, except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation. 7 In addition, while covered elsewhere in the statute, both state and local governments are not covered by the title III regulation
Private businesses that provide goods or services to the public
are referred to as “public accommodations” in the ADA statute,
which establishes requirements for twelve categories of public accommodations,
includ-ing stores and shops, restaurants and bars, service establishments,
theaters, hotels, recreation facili-ties, private museums and schools and
others. Nearly all types of private businesses that serve the public are
included in the catego-ries, regardless of size.
To
meet
the goals of the ADA, the law established requirements for private businesses
of all sizes. These requirements first went into effect on January 26, 1992,
and continue for both for-profit and non-profit
organizations.
Your clients
that own, operate, lease, or lease to a business that
serves the public are covered by the ADA and have obligations for existing
facilities, and for compliance of newly constructed faculties, as well as
existing facilities which are altered, and construction of new facilities.
There are no "grandfather provisions" that exempt any existing facilities,
contrary to state or local exemptions often provided for prior non-conforming
uses under building codes.
In addition, as discussed in the Title I section
supra, the ADA also may impact on your clients who are employers;
the
Americans with Disabilities Act (ADA) Title I includes employment provisions
that applies to all businesses with 15 or more employees. In employer-employee
situations, The ADA is a federal civil rights law designed to prevent
discrimination and enable individuals with disabilities to participate fully
in all aspects of society. The Title I employment provisions have been discussed
in more detail above. Who are "Individuals with Disabilities":The Americans with Disabilities Act provides comprehensive protections for "individuals with disabilities". An individual with a disability is a person who --
7
Has a physical or mental impairment that substantially limits one
or more major life activities, or
7
Has a record of such an impairment, or
7
Is regarded as having such an impairment.
Examples of physical
or mental impairments include, but are not limited to, such contagious and
non-contagious diseases and conditions as orthopedic, visual, speech, and
hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple
sclerosis, cancer, heart disease, diabetes, mental retardation, emotional
illness, specific learning disabilities, HIV disease (whether symptomatic
or asymptomatic), tuberculosis, drug addiction, and alcoholism. Homosexuality
and bisexuality are not physical or mental impairments under the ADA.
WHAT ARE THE BASIC REQUIREMENTS OF A BUSINESS UNDER TITLE III?
If your client is a “public accommodation” they must provide goods
and services in an integrated setting, unless separate or different measures
are necessary to ensure equal opportunity.
Make reasonable modifications in policies, practices, and procedures that
deny equal access to individuals with disabilities, unless a fundamental
alteration would result in the nature of the goods and services provided.
A public accommodation is not required to provide personal devices such as
wheelchairs; individually prescribed devices (e.g., prescription eyeglasses
or hearing aids); or services of a personal nature including assistance in
eating, toileting, or dressing.
THE ADA TITLE III AND YOUR CLIENT’S EXISTING FACILITIES:
Many business facilities were built with features that do not accommodate
people with disabilities, including people who use wheelchairs. This lack
of accessibility makes it impossible for many people with disabilities to
take part in everyday activities such as going to work, eating in a restaurant,
or shopping in a store. The ADA recognizes that, for people with disabilities
to participate in the everyday activities in their communities, they need
to have access to employment as well as to the goods and services provided
by businesses.
To improve access, the ADA established both requirements for removing barriers in existing facilities and the ADA Standards for Accessible Design for new construction and alterations. In existing facilities, where retrofitting may be expensive, the requirement to provide access is less stringent than it is in new construction, where accessibility can be incorporated in the initial stages of design and construction without a significant increase in cost.
If your client owns or operates a business that serves the public, they must remove physical barriers when "readily achievable," which means it can be easily accomplished without much difficulty or expense. The "readily achievable" requirement is based on the size and resources of the business. So larger businesses with more resources are expected to take a more active role in removing barriers than small businesses.
The ADA also recognizes that economic conditions vary. In the event your
client’s business has resources to remove barriers, it is expected to
do so; but when a client’s profits are low, barrier removal may be reduced
or delayed. Barrier removal is an ongoing obligation – businesses are
expected to remove barriers in the future as resources to do so become available
to that business.
In evaluating what barriers need to be removed, a business should look to
the ADA Standards for Accessible Design as a guide. These standards are part
of the ADA Title III regulations. The DOJ, which enforces Title III of the
ADA recommends seeking input from people with disabilities in your client’s
community as an important and valuable part of the barrier removal process,
“because they can help identify barriers in your business and offer
advice on what solutions may work.”
Physical barriers to entering and using existing facilities must be removed
when "readily achievable." Readily achievable means "easily accomplishable
and able to be carried out without much difficulty or expense."
The regulation does not require the rearrangement of temporary or movable
structures, such as furniture, equipment, and display racks to the extent
that it would result in a significant loss of selling or serving space.
Examples of barrier removal measures include:
The ADA requires the removal of physical barriers, such as stairs, if it
is "readily achievable." However, if removal is not readily achievable,
alternative steps must be taken to make goods and services accessible. 7 Providing goods and services at the door, sidewalk, or curb, 7 Providing home delivery 7 Retrieving merchandise from inaccessible shelves or racks, 7 Relocating activities to accessible locations.
Extra charges may not
be imposed on individuals with disabilities to cover the costs of measures
used as alternatives to barrier removal. For example, a restaurant may not
charge a wheelchair user extra for home delivery when it is provided as the
alternative to barrier removal. THE ADA AND YOUR CLIENT’S NEW CONSTRUCTION AND/OR ADDITIONS: New Construction:
All newly constructed business buildings or facilities must be readily accessible
to and usable by individuals with disabilities. This means that new buildings
or facilities must be built in compliance with the ADA Standards for Accessible
Design. The ADA Standards are comprehensive and require accessibility to
most areas and features found in buildings or facilities. The requirements
for work areas are more limited than those for public and common use
areas.
Elevators are not required in facilities under three stories or with fewer
than 3,000 square feet per floor, unless the building is a shopping center,
shopping mall, professional office of a health care provider, or station
used for public
transportation.
Alterations and Additions to Existing Structures: An “alteration” is a change that affects usability of a facility. For example, if during remodeling, renovation, or restoration, a doorway is being relocated, the new doorway must be wide enough to meet the requirements of the ADA Accessibility Guidelines. Alterations also include remodeling, renovation, rearrangements in structural parts, and changes or rearrangement of walls and full-height partitions.
On the other hand, normal maintenance, re-roofing, painting, wallpapering,
asbestos removal, and changes to electrical and mechanical systems are not
"alterations," unless they affect usability of the facility. Alterations to provide an accessible path of travel are required to the extent that they are not "disproportionate" to the original alteration, that is, to the extent that the added accessibility costs do not exceed 20 percent of the cost of the original alteration to the primary function area.
A “primary function area” is any area where a major activity takes
place. It includes both the customer services areas and work areas and the
public and common use areas in places of public accommodation. It includes
all offices and work areas in commercial facilities. It does not include
mechanical rooms, boiler rooms, supply storage rooms, employee lounges or
locker rooms, janitorial closets, entrances, corridors, or
restrooms.
Additions To the extent that spaces or elements are newly constructed as part of an addition they must meet the requirements for new construction.
Elevators: Elevators are not required in facilities under three stories or with fewer than 3,000 square feet per floor, unless the building is a shopping center, shopping mall, professional office of a health care provider, or a public transportation station.
THE ADA AND
YOUR CLIENT’S POLICIES, PRACTICES &
PROCEDURES: Businesses offering goods and services to the public must review their policies and procedures for serving customers and change those that exclude or limit participation by people with disabilities. For example, if a store has a policy to exclude all animals, the policy should be changed to permit people who use service animals, such as "seeing-eye-dogs" and "hearing-assist-dogs" to enter the store with their service animals. A store that has a special accessible entrance that remains locked during business hours will need to change the policy and keep the door unlocked when the store is open. If security is a problem, an accessible call box or buzzer (identified by a sign and mounted in an accessible location and height) should be installed to enable people with disabilities to call staff to unlock the door. A business such as a restaurant which provides seating for patrons, but that restricts seating of people with disabilities to one area must revise the policy to permit the same range of choices enjoyed by others. Businesses offering goods and services to the public must provide auxiliary aids and services when needed to communicate effectively with people who have hearing, vision, or speech impairments, unless providing the aid or service would be an undue burden or a fundamental alteration to the nature of the business. Auxiliary aids and services include reading written information to a person who is blind or who has low vision or providing large print, audiotape or Braille; and using written notes, sign language interpreters or using captioning to communicate with a person who is deaf, hard of hearing or who has a speech disability.
For additional details on the ADA impact on your clients (or your own practice)
please refer to the substantive written materials accompanying this
activity.
TAX INCENTIVES FOR ADA COMPLIANCE: Both tax credits and deductions are available to certain business. A maximum tax credit of $5,000.00 may available to your client for improvements to accessibility, and tax deductions of up to $15,000.00 per year may also be available. Additional details are provided in the accompanying substantive written materials.
ACTIVITY NOTES: Accompanying this CLE Activity are the following substantive written materials listed infra. Simply click on the link to access these additional materials. You may print these additional materials, or save them to a separate disk or onto your computer. The CD version of this program has the documents on the program CD. If using the Online version of the program, RIGHT CLICK on the following links, then select "save target as" to save them to your computer.
You will need the FREE Adobe Acrobat Reader to view and/or print out those
materials. If you do NOT have the Acrobat Reader installed on your computer,
you can get it without cost by clicking the following link with your computer
connected to the
internet:
http://www.adobe.com/products/acrobat/readstep2.html
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