Saturday, October 16, 2010

Understanding the Americans with Disabilities Act

Introduction

On July 26, 1990, President George Bush signed into law "The Americans with Disabilities Act of 1990" (ADA). This law gives civil rights protection to individuals with disabilities, similar to that provided to individuals on the basis of race, sex, national origin and religion. The ADA guarantees equal opportunity for individuals with disabilities in the areas of employment, state and local government services, public transportation, privately operated transportation available to the public, places of public accommodation and telephone services offered to the general public. Many regard the ADA as the most sweeping piece of civil rights legislation since the Civil Rights Act of 1964; others believe that because of the widespread physical barriers the ADA will cause to be removed, it is the most far-reaching civil rights law ever enacted.

To understand the basis for the enactment of the ADA in 1990, one must look at certain historical events of the 1970s and the 1980s in the disability rights struggle. First and foremost has been the ability and desire of diverse disabled individuals at all levels to work together, formally and informally, towards the common goals of full participation in American society for all people with disabilities. This strong desire for full participation--and the righteousness of this high ideal--is undeniable, and is the very fabric of the freedom and opportunity available to all citizens of the United States.

This desire for full participation in American society led to the passage of the Rehabilitation Act of 1973 and the Education For All Handicapped Children Act of 1974 (renamed the Individuals with Disabilities Education Act). The former law, among other initiatives, prohibited discrimination on the basis of disability in local programs and activities benefitting from federal financial assistance; its enforcement has resulted in improved program accessibility for disabled persons to health care, social services, recreation, housing, transportation, etc. Perhaps most importantly, the 1973 Rehabilitation Act began to open educational opportunities to disabled persons at all levels. The Individuals with Disabilities Education Act went further, requiring the mainstreaming of disabled students into regular classrooms if appropriate, and the establishment of individualized educational programs for students with disabilities.

Despite these important full participation initiatives in the 1970s, an important poll of people with disabilities conducted in 1985 by the highly regarded Louis Harris Company proved that the common thread of disability in America is unemployment. The Harris Poll established that two-thirds (67%) of all Americans with disabilities between the ages of 16 and 24 are unemployed. Further, only one in four (25%) are employed full-time. In many ways, the Harris Poll results confirmed what many Americans already knew from the 1980 census: non-disabled men participated in the labor force at a rate of 88%, while only 42% of disabled men were in the labor force; non-disabled women participated in the labor force at a rate of 64%, while only 24% of disabled women were in the labor force. Several other studies conducted during the 1980s indicate a steady growth from year to year in the numbers of disabled persons ready for employment and entering the labor force.

The basis for the Americans With Disabilities Act of 1990 is that during the past two decades, educational and vocational training opportunities for individuals with disabilities have greatly improved, while employment opportunities in the private sector and access to places of public accommodation including public and privately-operated transportation services, have not improved. Enforcement of the ADA in the years ahead should enable disabled individuals to realize the heretofore elusive goal of full participation in American society.

Key Employment Provisions

Beginning July 26, 1992, employers with 25 or more employees are prohibited from discriminating against qualified individuals with a disability in all of the following areas:

* job application procedures;
* hiring, advancement or discharge of employees;
* employee compensation;
* job training;
* other terms, conditions and privileges of employment.

Beginning July 26, 1994, the prohibition of discrimination in employment against qualified individuals with disabilities is expanded to cover employers with 15 or more employees.

In addition to employers, the prohibition of discrimination in employment covers employment agencies, labor organizations and joint labor-management committees. Types or forms of prohibited discrimination in employment include:

* segregating or classifying an applicant or employee in a way that adversely affects employment opportunities because of the individual's disability;
* participating in a contractual arrangement that has the effect of discrimination against the applicant or employee;
* using methods of administration that have the effect of discrimination, or which perpetuate the discrimination of others;
* discrimination based on a qualified individual's relationship or association with another individual with a known disability;
* using tests or other selection criteria which tend to screen out an individual or a class of individuals with disabilities;
* failure to select and administer tests which accurately reflect the skills and aptitude of an applicant;
* denying employment solely on the basis of the need to make "reasonable accommodation" to the disability of a qualified applicant;
* not making "reasonable accommodation" to the disability of the qualified employee, unless such accommodation would impose an "undue hardship" on the employer.

Making "reasonable accommodation" to the disability of a qualified applicant or employee is generally regarded as a key to the successful employment of persons with severe disabling conditions. The ADA defines "reasonable accommodation" as efforts which may include:

* making existing facilities used by employees accessible to disabled individuals;
* job restructuring;
* part-time or modified work hours;
* reassignment to a vacant position;
* acquisition or modification of equipment or devices;
* appropriate adjustment or modifications of examinations, training materials or policies;
* the provision of qualified readers or interpreters;
* other similar accommodations for individuals with disabilities.

"Undue hardship" means an action requiring significant difficulty or expense, and the ADA includes a number of factors for consideration in determining if a "reasonable accommodation" actually constitutes an "undue hardship" on the employer, such as the nature and cost of the accommodation, the financial resources of the employer, the impact of such accommodations on the financial resources of the employer, or other factors.

The practice of providing "reasonable accommodation" to the disability of a qualified applicant or employe is not new in the ADA. Since the 1970s, "reasonable accommodation" has been required in regulations of the Equal Employment Opportunity Commission, the Office of Federal Contract Compliance Programs, and the Department of Justice to implement rules for non-discrimination in employment from sections 501, 503 and 504, respectively, of the Rehabilitation Act of 1973.

Data from several studies conducted by federal government agencies indicate, first, that only 22% of employees with disabilities need "accommodations" at the worksite at all. A second study detailed the average costs of "accommodations" as follows:

* No cost to employee 31%
* Between $1 and $50 19%
* Between $50 and $500 19%
* Between $500 and $1000 19%
* Between $1000 and $5000 11%
* More than $5000 1%

Less than one quarter of employees with disabilities need "accommodations," and nearly 70% of such "accommodations" cost less than $500 per disabled employee. Additionally, if the "accommodation" involves removing barriers to a disabled employee or applicant at an existing place of business, the employer may be eligible for a tax credit of up to $5,000 per taxable year for such barrier removal (see pages 11-12 for more details).

Another form of discrimination in employment which the ADA prohibits is pre-employment medical inquiries. Pre-employment medical examinations and disability inquiries are prohibited. However, an employer may require a medical examination after an offer of employment has been made if all entering employees are subject to such examination regardless of disability; and employers may require employees to undergo medical exams or make inquiries as to the disability of employees if such examination or inquiry is shown to be job-related. Voluntary medical examinations and medical histories, conducted as part of an employee health program, are acceptable under the ADA.

The ADA specifically states that a qualified individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs. Protection is provided, however, to those who have successfully completed a drug rehabilitation program, or who are currently enrolled in such programs. Employers may utilize drug testing to ensure that individuals who have completed or are enrolled in rehabilitation programs remain drug free. The ADA provides additional authority to employers to prohibit the use of drugs and alcohol at the workplace, to hold employees abusing drugs or alcohol to the same job performance criteria as other employees, and to require employees to comply with other federal regulations for certain industries concerning drug and alcohol abuse.

The Equal Employment Opportunity Commission has issued regulations implementing the act's employment provisions. Finally, the ADA requires coordination among federal agencies involved in implementing employment discrimination statutes, to avoid duplication of efforts and to encourage consistent standards in their enforcement.

Major Provisions Concerning Public ServicesIncluding Public Transportation

Taken together, Title II of the ADA, which prohibits discrimination in public services including public transportation, and Title III, which prohibits discrimination in public accommodations operated by private entities, provide protection from discrimination to individuals with disabilities in the same full range of facilities available to the public at large. With few exceptions, enforcement of the ADA will make almost every community facility and service now available to the able-bodied public equally available to individuals with disabilities.

Concerning public services, which include state or local governments, any instrumentality of such government, and Amtrak, such public service providers are prohibited from discriminating against individuals with disabilities. The effective date of this section is January 26, 1992. The Department of Justice has issued regulations to implement the public service provisions regarding prohibition of discrimination, and these rules adopt the minimum design standards required in the ADA and developed by the federal Access Board. While many public entities have improved accessibility to individuals with disabilities in recent years because they are federal fund recipients and required to to so by Section 504 of the Rehabilitation Act, this important section of the ADA broadens the coverage of public services to include any state or local government, or instrumentality thereof, whether or not they receive federal financial assistance.

Public Transportation

Effective August 26, 1990, any public entity which operates a fixed route system must purchase buses which are accessible to individuals with disabilities, including wheelchair users. This requirement also applies to the purchase or lease of used vehicles. They, too, must be accessible to individuals with disabilities. It is also a discriminatory practice to remanufacture existing fixed route vehicles without accessibility, if the remanufactured vehicle has its usable life extended for five years or more. This provision also became effective on August 26, 1990. The ADA does provide an exception from fixed route vehicle accessibility for vehicles of an historic character.

Requirements for public transportation entities go beyond the purchase of accessible fixed route vehicles. It shall also be a discriminatory practice of public entities which operate fixed route services to fail to provide complimentary paratransit or other special transportation services in their geographic area. The requirement for paratransit service in the ADA also called for the development of a plan for this paratransit system, including implementation, by each public entity providing public transportation by July 26, 1993. The development of the plan also had public participation, including public hearings, involving groups and individuals with disabilities.

All new facilities constructed by a public entity providing public transportation must be built in an accessible fashion. Alterations to existing facilities operated by the public entity must also be rendered accessible. For rapid rail and light rail systems, "key" stations must be made accessible by July 26, 1993 or within 30 years of the effective date of the ADA if the alterations involve extraordinarily expensive structural changes. If, under these circumstances, a 30-year compliance period is allowed by the Secretary of Transportation, two-thirds of the "key" stations must be accessible within 20 years. "Key" stations in rapid and light rail systems are those defined by criteria established through regulation by the Secretary of Transportation. By July 26, 1995, for light rail and rapid rail systems, at least one car per train must be accessible to individuals with disabilities, including wheelchair users. Trains of an historic character may be exempted from this provision. This same "one car per train" rule applies to trains operated by public entities providing commuter rail service and Amtrak, with the same effective date of July 26, 1995.

All new rail passenger car purchases by Amtrak must be accessible to individuals with disabilities including, for single-level passenger coaches, the ability to park and remain in one's wheelchair and the ability to use wheelchair-accessible public restrooms on the train. Single-level dining cars and bi-level dining cars are exempted from this requirement. Within five years, on each Amtrak passenger train, there must be an area to park, secure and remain in a wheelchair as well as an area to store and fold a wheelchair, after transfer to a seat. The number of such securement/storage areas must be equal to one-half the number of coaches on the train; and within 10 years, they must be available on passenger coaches equal to the number of coaches on the train itself. Accessibility requirements are also included in the ADA concerning Amtrak for single-level dining cars. For commuter rail systems, effective August 26, 1990, all new rail passenger cars purchased must be accessible. The ADA also deems it discrimination if used railcars are purchased and not accessible, and if remanufactured railcars with a useful life of 10 or more years are purchased and not accessible. For commuter rail stations, any new station constructed must be accessible and alterations of existing stations must be made accessible to the maximum extend feasible. "Key" stations in commuter rail systems, including high ridership, transfer and feeder stations, must also be rendered accessible. For Amtrak stations, all must be made accessible within a 20-year period; for commuter rail systems, "key" stations must be made accessible within a three-year period but this deadline can be extended to 20 years by the Secretary of Transportation. Commuter rail authorities submitted plans to the Secretary of Transportation designating "key" stations in their systems, and the plans involved consultation with individuals and groups of persons with disabilities.

Major Provisions Concerning Public Accommodations Operated by Private Entities

Effective January 26, 1992, private entities which own, lease, lease to, or operate a place of public accommodation are prohibited from discriminating against individuals with disabilities. This prohibition of discrimination in places of public accommodation generally includes: (a) the imposition of eligibility criteria which tend to screen out individuals or classes of persons with disabilities; (b) a failure to make reasonable modifications in the policies and practices of the place of public accommodation; (c) a failure to provide necessary auxiliary aids and services in a place of public accommodation; (d) a failure to remove architectural and communication barriers in a place of public accommodation which are "readily achievable" or easily accomplished with little difficulty or expense; and (e) where the removal of architectural or communication barriers is not readily achievable, a failure to provide the means to accommodate individuals with disabilities through alternative methods.

The prohibition of discrimination in places of public accommodation also extends to transportation provided by places of public accommodation, when transporting people is not the major aspect of the activity-such as hotels, private colleges and senior citizen centers. For private entities which operate fixed route systems, effective August 26, 1990, it is a discriminatory practice if vehicles with seating in excess of 16 passenger seats are purchased and not accessible; if the private entity which operates a fixed route system purchases or leases a vehicle with 16 or fewer passenger seats, then the fixed route transportation program must be accessible when viewed in its entirety. For private entities which operate demand-responsive systems, such a system when viewed in its entirety must be accessible to persons with disabilities. If private entities which operate demand-responsive systems purchase vehicles with more than 16 passenger seats after August 26, 1990, they must prove that their demand-responsive systems are accessible to persons with disabilities when viewed in their entirety.

Public Accommodations

The following private entities are considered public accommodations for purposes of the ADA, if the operations of such entities affect commerce.

* An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the proprietor's residence;
* A restaurant, bar, or other establishment serving food or drink;
* A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
* An auditorium, convention center, lecture hall, or other place of public gathering;
* A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
* A laundromat, dry-cleaner, bank, barber shop, beauty shop, travelservice, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
* A terminal, depot, or other station used for specified public transportation;
* A museum, library, gallery, or other place of public display or collection;
* A park, zoo, amusement park, or other place of recreation:
* A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
* A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
* A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

Concerning the new construction of places of public accommodation and commercial facilities, such new construction must be accessible in facilities for first occupancy after January 26, 1993. Concerning alterations in places of public accommodation, both the altered portion of the facility and the path of travel to the altered areas including bathrooms, telephones, and drinking fountains must be rendered accessible, as long as the cost of modifying the path of travel, bathrooms, telephones, and drinking fountains is not disproportionate to the overall cost of the alteration project. Elevators are not required in places of public accommodation and commercial facilities that are less than three stories or which have less than 3,000 square feet per story unless the building is a shopping center, a shopping mall, the professional office of a health care provider, a transportation terminal or an airport.

The prohibition of discrimination in places of public accommodation also extends to private entities whose primary business is transporting people, such as privately-owned bus companies. Among other prohibited practices, such private entity operating a fixed route system may not purchase or lease a new vehicle, other than an automobile, a van with a seating capacity of less than eight passengers or an over-the-road bus, unless such vehicle is accessible to disabled individuals including wheelchair users. The effective date of this provision is August 26, 1990. However, if the private entity operates a demand responsive system, it will not have to purchase such accessible vehicles, if it can prove that the transportation program provides equivalent service for people with disabilities (including individuals who use wheelchairs) when the system is viewed as a whole. Effective February 25, 1992, private entities operating either a fixed route or a demand responsive system must purchase vans with a seating capacity of less than eight passengers that are accessible, unless the entity can prove that its entire transportation program is accessible when viewed in its entirety. Also effective August 26, 1990, a private entity whose main business is providing transportation to people may not purchase a new rail passenger car, or remanufacture an existing rail passenger car to extend its usable life for 10 years or more, unless such rail passenger cars are accessible to disabled individuals including wheelchair users. Under certain circumstances, private entities which operate historical or antiquated vehicles may obtain an exception to these requirements.

For over-the-road bus accessibility, i.e., a bus with an elevated passenger deck located over a baggage compartment, an ADA required study was undertaken to determine the feasibility, cost and potential usability of such buses. The study, completed by the Office of Technology Assessment, utilized an advisory committee which included disabled individuals. The Secretary of Transportation then issued both interim and final requirements. Such over-the-road buses must be purchased as accessible by private entities beginning July 26, 1996, for large over-the-road bus companies, and, July 26, 1997, for smaller transportation providers which utilize such buses; however, the President may extend these deadlines by a maximum of one year based on the office of Technology Assessment report if accessible over-the-road buses will limit overall inter-city bus travel.

The ADA provides two specific exemptions from the requirements for the prohibition of discrimination in places of public accommodation. These are for private clubs and religious organizations, including places of worship.

The Department of Justice has the primary enforcement responsibility for the ADA's public accommodations provisions. Injunctive relief is available concerning action brought against places of public accommodation. Civil penalties may be assessed against violators of the public accommodations section of the ADA as well, not to exceed $50,000 for a first violation and $100,000 for any subsequent violation. The general effective date of the provisions concerning public accommodations is January 26, 1992.

Telecommunications Services for Hearing-Impaired and Speech-Impaired Individuals

Effective July 26, 1993, each common carrier engaged in interstate communication by wire or radio must provide telecommunications relay services for hearing-impaired and speech-impaired individuals. Such telecommunications relay services provide an individual who has a hearing or speech impairment with the ability to engage in communication by wire or radio with a hearing individual in a manner equivalent to that of two individuals without such impairments using voice communication services by wire or radio. Telecommunications relay services include services that enable two-way communication to occur between an individual who uses a Telecommunications Device for the Deaf (TDD) or other non-voice terminal device and an individual who does not use such a device.

The Interstate Commerce Commission, which has primary enforcement responsibility for this section of the ADA, has issued regulations to implement the telecommunications relay services provisions of the Act. These regulations apply to both intrastate and interstate telecommunication relay services, and the regulations insure, among other standards, that telecommunications relay services operate every day for 24 hours per day, and that users of telecommunications relay services not be required to pay greater rates than rates paid for equivalent services utilized by individuals without hearing or speech impairments.

This title of the ADA also contains an important provision requiring that any television public service announcement produced or funded in whole or in part by any agency or instrumentality of the federal government must include closed captioning of the verbal content of such public service announcements.

Miscellaneous Provisions

One of the more important miscellaneous provisions in the ADA is one which enables insurers, hospitals or medical service companies, and health maintenance organizations to underwrite, classify and administer risks concomitant with such insurance or health benefit plans. This same enabling language applies to persons or organization covered by other sections of this Act, as well as to other benefit plans provided by persons or organizations covered under the Act which are not insurance plans.

This law also called for the Attorney General to develop a Technical Assistance Plan for entities covered under the ADA. This plan was published for public comment, and each federal agency responsible for the implementation of these separate titles of the ADA published implementation regulations. Each federal agency responsible for the implementation of the ADA then developed and provided entities with appropriate technical assistance manuals.

The ADA also required the Access Board to issue minimum guidelines, referred to as ADAAG, the ADA Accessibility Guidelines, which apply to building, facilities, rail passenger cars, and vehicles covered under Titles II and III of the ADA. The ADAAG contains procedures for qualified historic properties which are generally similar to such procedures currently available in the Uniform Federal Accessibility Standards.

The National Council on Disability has completed a plan for the accessibility of wilderness areas to individuals with disabilities, including wheelchair users, as required in the ADA.

The ADA also requires that both the U.S. Senate and the U.S. House of Representatives afford the rights and protections provided under the ADA to qualified individuals with disabilities. This requirement includes employment rights and privileges, and extends to physical accessibility matters concerning U.S. Capitol buildings.

The ADA also contains language which amends the Rehabilitation Act of 1973 to clarify that the definition of a handicapped individual does not include a person who is currently engaging in the illegal use of drugs, but that individuals who have successfully completed or are currently enrolled in a drug or alcohol rehabilitation program are defined as handicapped and protected under this act.

One of the important closing provisions of the ADA is one which encourages alternative means of dispute resolution. Such alternative means shall include settlement negotiations, conciliation, facilitation, mediation, fact-finding, mini-trials, and arbitration. These methods are encouraged to resolve disputes arising under the ADA.

Section 44 of the IRS Code

In the provisions of the Revenue Reconciliation Act of 1990, Congress adopted an important new tax credit for barrier removal in existing buildings to specifically comply with the requirements of the Americans with Disabilities Act of 1990. Effective for expenditures paid or incurred after November 5, 1990, Internal Revenue Code Section 44 allows an eligible small business to elect a nonrefundable tax credit equal to 50 percent of the amount of the eligible access expenditures for any tax year between $250 and $10,250. Consequently, the maximum amount of the credit for any taxable year is $5,000.

An eligible small business is defined as any person (term includes corporation) that: (1) had gross receipts (reduced by returns and allowances) for the preceding taxable year that did not exceed $1 million or (2) had no more than 30 full-time employees, and (3) elects the application of the disabled access credit for the tax year. An employee is considered full-time if employed at least 30 hours per week for 20 or more calendar weeks in the tax year.

Eligible access expenditures specifically include amounts paid or incurred: (1) for the purpose of removing architectural, communication, physical, or transportation barriers which prevent a business from being accessible to, or usable by, individuals with disabilities; (2) to provide qualified interpreters or other effective means of making aurally delivered materials available to individuals with hearing impairments; (3) to provide qualified readers, taped texts, and other effective methods of making visually delivered materials available to individuals with visual impairments; (4) to acquire or modify equipment or devices for individuals with disabilities; or (5) to provide other similar services, modifications, materials, or equipment.

The Section 44 tax credit can be elected in more than one taxable year, provided that eligible access expenditures were paid by an eligible small business; however, if the Section 44 credit is elected in a taxable year, no deduction or credit is allowed for access improvements under any other IRS Code provisions (e.g. Section 190 of the IRS Code). For more information about this tax credit, contact EPVA.

(The Revenue Reconciliation Act of 1990 reduced the maximum allowable amount of the IRS Code Section 190 deduction from $35,000 to $15,000, effective for the taxable year beginning January 1, 1991.)

Section 190 of the IRS Code

Businesses, private entities and places of public accommodation, including transportation systems, which must comply with provisions of the Americans with Disabilities Act, may need to remove certain architectural and transportation barriers in order to comply with this Act. An annual tax deduction of up to $15,000 each year may be taken by any taxpayer who removes barriers to disabled individuals in a place where a business or trade is conducted. This applies only to the removal of barriers at existing places of business or trade. Design areas which are covered include:

* Grading
* Toilet Rooms
* Walks
* Water Fountains
* Parking Lots
* Public Telephones
* Ramps
* Elevators
* Entrances
* Controls
* Doors and Doorways
* Identification
* Stairs
* Warning Signals
* Floors
* Hazards
* International Symbol of Accessibility
* Additional Standards for Rail Facilities
* Standards for Buses
* Standards for Rapid and Light Rail Vehicles

An additional provision in the IRS Code Section 190 Regulations covers other barrier removals, which may include a substantial barrier to the access or use of a facility or public transportation vehicle; a barrier to one or more major classes of such individuals (such as blind or deaf persons or persons using wheelchairs); and, the removal of such barrier being accomplished without creating any new barrier that significantly impairs access to or use of the facility or vehicle. This provision of the Section 190 Regulations is meant to cover other barrier removals which are not covered specifically in the regulations. For example, if the barrier removal is covered in a local code section governing provisions for physically handicapped persons, it would be an eligible expense under this provision of the IRS Code Section 190 Regulations.

By Alexander Hawes LLP

---------------------------------

Eastern Paralyzed Veterans Association, 75-20 Astoria Boulevard, Jackson Heights, NY 11370-1177, 718.805.3782, produced this article. EPVA is a not-for-profit organization dedicated to enhancing the lives of veterans with a spinal cord injury or disease.

No comments: