On July 23, 2010, Attorney General Eric Holder signed final regulations revising the Department of Justice regulations under the Americans with Disabilities Act (ADA). These new regulations address general nondiscrimination requirements relative to people with disabilities and adopt new Standards for Accessible Design that are consistent with the minimum guidelines published by the U.S. Architectural and Transportation Compliance Board (Access Board). These new design standards align the ADA’s requirements with other federal standards, as well as with model building codes, and reflect the experience gained in the 20 years since the first design related regulations were adopted.
The general nondiscrimination requirements became effective on March 15, 2011; however, the Justice Department delayed the effective date until March 15, 2012, to allow sufficient time to plan for implementation. Design professionals and businesses needed time to understand the effects of these new rules and evaluate how to incorporate the modifications into their future plans and projects, says Dale Hermeling, a partner with The Stolar Partnership LLP in St. Louis.
“With the nondiscrimination standards already in effect and with the upcoming March 15, 2012, compliance date on the design standards, now is the time for businesses to review their overall compliance with the ADA,” he says.
Smart Business spoke with Hermeling about the ADA and how the changes could impact a business’s compliance obligations.
Who is affected by these new rules under the Americans with Disabilities Act?
As with the previous rules, these modifications deal with Title II and Title III of the ADA. Title II addresses public entities, which include state and local governments and their various departments and agencies. Title III addresses private entities that operate public accommodations, places such as hotels, restaurants, bars, theaters, retail stores, doctors’ offices, etc. There is no limitation on the size of the business, and each is required to modify its business policies and practices in order to serve customers with disabilities.
These policies and practices need to address considerations for the expanded use of service animals, different types of wheel chairs or other power-driven devices such as Segways, seating requirements in assembly areas and effective ways for communicating with persons with disabilities.
What are the requirements relating to removal of barriers?
Public accommodations have been required under previous regulations to remove architectural barriers where the removal is ‘readily achievable’ or can be carried out without much difficulty or expense. Examples include the installation of ramps, making curb cuts in sidewalks, widening of doors, creating designated parking spaces, etc. All of these types of modifications should already be in place under the previous regulations.
Will building owners be required to modify existing facilities to make them more accessible?
If a building has failed to follow the previous regulations and hasn’t addressed barrier removal under the 1991 standards, it needs to address those now and can use either the 1991 or the 2010 Design Standard until March 15, 2012. If a building has already addressed these issues under the 1991 Design Standard, it is protected by a safe harbor and doesn’t need to take immediate steps, but if it embarks on other alterations to the building or facility, it will need to utilize the new 2010 Design Standards. Any new construction after March 15, 2012, will be covered by the new standard.
Who is responsible for compliance with ADA regulations in a lease arrangement?
Both the landlord who owns a building with a public accommodation and a tenant who owns or operates a business with a public accommodation are subject to the requirements. You may see provisions in the lease that impose the obligation on one party or another, but under the law, both parties are responsible.
Are there any tax benefits available for complying with these new requirements?
Section 44 of the Internal Revenue Code allows a tax credit for small businesses with 30 or fewer full-time employees or total revenue of $1 million or less in the previous tax year. This credit can cover 50 percent of the eligible access expenditures in a year, with a maximum credit of $5,000.
The tax credit can be used to offset costs associated with barrier removal and alterations to improve accessibility, or providing accessible formats for communication such as Braille, or large print signs or audio tapes. Section 190 of the code allows a tax deduction for all businesses, with a maximum deduction of $15,000 per year for costs associated with barrier removal or alterations .
What advice would you give a business owner about complying with the new standards?
The ADA has a variety of components. Whether it’s issues of general non-discrimination and dealing with the new Design Standards or the employment elements under the EEOC, business owners need to stay on top of these matters as they develop. They need to evaluate their policies and procedures to make sure that they comply with the new requirements and train their work force to help accommodate people with disabilities as required.
It is important that you have a policy in place that addresses how to respond to a person who might lodge a complaint and to document what happened during the course of the discussion. We can anticipate increased enforcement by the Justice Department, which could result in fines and other penalties.
Dale Hermeling is a partner with The Stolar Partnership. Reach him at email@example.com or (314) 641-5135.
On March 25, 2011, the Equal Employment Opportunity Commission’s (EEOC) regulations to implement provisions of the American with Disabilities Act Amendment Act (ADAAA) of 2008 went into effect. The overarching federal law didn’t present many changes to the pre-existing California state law, but it did clarify several ambiguous aspects to the ADA, and defined appropriate steps for an employer to take to accommodate disabled employees.
Smart Business spoke with Lisa Aguiar, partner at Ropers Majeski Kohn & Bentley PC, about how businesses can properly adjust to comply with the new regulations.
What does the Amendment Act mean for employers?
The Amendment Act confirmed in its definition of ‘disability’ that there are certain conditions that will always be considered a disability no matter what — conditions such as deafness, autism, cancer, cerebral palsy, bipolar disorder, post-traumatic-stress disorder, to name a few. Also, unlike the federal law which requires accommodations be made when a disability substantially limits a major life activity, in California accommodations must be made in a disability that limits a major life activity, thereby expanding the number of employees potentially eligible for accommodations for their disabilities.
The regulations expanded and clarified the definition of major life activity. For example, if a disability affects sleeping, thinking, interacting with others, or it affects major bodily functions or bodily systems such as the immune system or cell growth, it will be considered a major life activity.
There had been some uncertainty as to how long someone must be afflicted with a condition in order for it to qualify as a disability under the ADA. The amendment clarified that a ‘short-term’ disability could be a disability requiring accommodation. Employers are now faced with potentially having to accommodate virtually any condition that lasts more than a couple of months.
How can a business ensure it is properly accommodating disabled employees?
Having a policy in place is critical. The law in this area is still developing and it is important that the policy be reviewed by an attorney who has experience in this area, who knows the changes and developments in the law. In addition, that policy should be reviewed on a fairly regular basis — every year or so.
Accommodations are required if an employer knows or should have known that an employee was disabled. Supervisors and managers interacting with employees on a daily basis are in the best position to determine firsthand whether an employee has a potential disability, so ensure that supervisors are trained on the policy and know what to look for, what to do if they suspect that there is a potential disability, whom to talk to, and what the company’s steps are in determining whether an accommodation is necessary.
What else should an employer be aware of when determining accommodations?
If an employee brings you a doctor’s note, it’s important to understand the limits on what information an employer is entitled to receive. In California, there are heightened privacy standards that may not exist in other states. For example, employers are not entitled to know the exact nature of an employee’s condition or diagnosis. Unless you have objective evidence that the doctor’s note is not accurate, it is generally best to accept the note on face value. However, it is acceptable and oftentimes necessary to contact the employee’s doctor in order to determine whether an employee can perform certain job functions or whether certain accommodations would assist the employee in performing the essential function of his or her job.
Be sure to engage in the interactive process, which is simply a dialogue between the employer and the employee. The employer has the right to determine what accommodation the company is able to provide, but it’s important to understand that if one accommodation doesn’t work, you must look into another accommodation. This interactive process can continue throughout the course of the disability, particularly if someone has a chronic condition. An accommodation on day one of the diagnosis could be very different six months later, and an employer has a continuing obligation to engage in that interactive process.
Dealing with certain types of accommodation may be very difficult and very frustrating for an employer, but the law requires the company to do so unless it can show that accommodating the disability will cause an undue hardship for the company. The standard for undue hardship is high and rarely can a company succeed in its argument that the accommodation causes an undue hardship.
What should an employer do if accused of violating the ADA?
Employers should always document their attempts at engaging in the interactive process. Documentation can be fairly simple, something along the lines of ‘I met with employee on this date, he handed me a note that says he requires this accommodation, we discussed these various forms of accommodation, and we decided to do X.’ Any documentation related to disability or accommodation issues never goes in the personnel file; it always goes in a separate medical file.
Employees who sue their employers tend to feel like they haven’t been heard or treated fairly. Take any complaints seriously, have a meeting, listen to the employee’s concerns, and see if there is any way that you can right the perceived wrong. It is when you ignore the complaints, or when you discipline or terminate an employee that complains without adequate, well-documented grounds, that you could have a problem. As long as you’re working in good faith to try to resolve an employee’s concerns, then you’ve got a fairly solid defense should an employee decide to make a complaint at a state agency or file a lawsuit.
Lisa Aguiar is a partner with Ropers Majeski Kohn & Bentley PC. Reach her at (408) 918-4555 or firstname.lastname@example.org.
New rules under the Americans with Disabilities Act Amendments Act (ADAAA) have significantly changed the workplace for dealing with individuals with disabilities.
The Amendments Act was enacted in 2008 to adopt a broader interpretation of the definition of ‘disability.’ Then, on March 25, 2011, the U.S. Equal Employment Opportunity Commission issued final regulations to the Amendments Act that expanded the definition even further.
“Employers should prepare for more ADA agency charges and complaints, as well as more complicated and costly litigation,” says Donna Geary, partner with Jackson Lewis LLP. “Employers must be ready to defend that their employment actions were legitimate and nondiscriminatory.”
Smart Business spoke with Geary about how the new regulations will affect employers and what litigation to expect in the future.
How will the changes impact ADA litigation?
The EEOC anticipates that the ADAAA, including its broader interpretation of ‘disability’ under the act, will result in an increase in the number of EEOC charges and lawsuits filed. In particular, the commission anticipates that more individuals with disabilities might file charges.
More employees are going to be covered by the Amendments Act than were previously covered by the old ADA. Before, if an employee went to human resources and said, ‘I have a back problem today,’ the HR people might think, ‘That does not sound like a disability to me.’ That was usually the end of it, because it was somewhat difficult to qualify as an individual with a disability under the ADA.
Now, it is much easier. Congress did not change the definition of disability; the definition is exactly the same. The way it is interpreted has changed.
How has the interpretation changed?
Previously, to consider if an individual was disabled, the individual was viewed in his or her corrected state. For example, if an employee has a leg amputation below the knee and has a prosthesis permitting him or her to easily walk, then that person was not substantially limited in a major life activity and was not considered disabled.
Under the amended ADA, Congress requires that the individual is now viewed in an uncorrected state. So if you take away the prosthesis, that person cannot walk and has a substantial limitation of a major life activity — walking — and is most likely considered disabled under the law.
As a result, many more employees will now be considered as disabled. Before, those people could not get past the initial part of the definition of disability. Now, most individuals with a medical, physical, or mental impairment will get past it. As a result, most claims will hinge on the ‘reasonable accommodation’ part of the ADA. Employers have to determine if there is a reasonable accommodation or job modification that permits the employee to do the job without causing the employer an undue hardship. Employers rarely got to that before, because most employees could not meet the definition of disability.
How will these regulations impact employers?
Employers should prepare for a large number of ‘reasonable accommodation’ cases, in which an employee must have an actual disability or record of a disability that substantially limits one or more major life activities.
If an employee has a doctor’s note saying he or she cannot lift heavy weight and lifting is part of the job, you might think the employee cannot do the job anymore. That is not true.
The employer needs to engage in what is termed the ‘interactive process.’ It is a legal requirement to engage in this process with the employee and the employee’s physician to determine if there is anything that can be done to modify the job so the employee can do it. If the employer cannot modify that job, are there other jobs the employee is qualified for where lifting heavy weight is not necessary?
It does not mean we have to do what the employee wants. What it means is the employer needs to review the situation and determine if there is something that can be done that does not cause the employer an ‘undue hardship.’
If employers do not engage in the interactive process, they will be found in violation of the statute. But as an employer, you do not have to lower quality or quantity standards.
For example, if a salesperson who sold 1,000 units last year only sold 500 units this year because of multiple sclerosis, and you do not want to set 500 units as the new standard, you do not have to make that accommodation. But you do have to look for a way to help that salesperson get to 1,000 units.
Where is the line between reasonable accommodations and undue hardship?
A reasonable accommodation can include changing the work schedule. If an employee has trouble coming in at 7 a.m. because he or she is groggy or stiff because of a medication, that person could come in at 9 a.m. instead. The employee still works eight hours; he or she just starts later. However, if the employee who wants to start at 9 a.m. works on a manufacturing line and wants the entire line to start at 9 a.m., that is most likely an undue hardship.
How do the final regulations impact day-to-day management of employees with injuries and illnesses?
Anyone with an impairment should be presumed to be protected by the new ADA. Every adverse employment action related to an individual’s physical or mental condition should be presumed to be a potential ADA case. As the new regulations have made it easier to qualify an employee as disabled, employers should focus their efforts on showing that they made the proper employment decisions, which will typically require that they engage in the interactive process.
Donna Geary is a partner with Jackson Lewis LLP. Reach her at (412) 232-0154 or email@example.com.