ADA Accommodation #1: Parking Tips & the Path of Travel*

In the past we had a series called “Access foibles” which featured one image, with an explanation or tip of what was in or out of compliance.

These images did not prove very useful for our readership because you all had to look at each one to find a discussion of what you found relevant.

So I am going to try posting an extended explanation, to make things easier for you.

This article is about ADA compliant parking and the path of travel requirements.  This discussion is NOT meant to be exhaustive.  If it was, I would probably need to write a small novel.

I am going to cover 3 images.

 

About these ADA Compliance Photos
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For the record, none of these images here resulted directly from any ADA compliance study.  These images were photographed by me, on my cell phone in my journeys across Southern California.  The properties depicted do not belong to anyone I know, and are only discussed on here for educational reference as to their ADA compliance.  I am not going to do anything else with these images, nor do I keep track of where each image originates.

If anything, the glaring ADA violations discussed in this image should impress upon you all how ubiquitous ADA violations are, and how easy it is to find a place that isn’t in compliance.

That being said, there are two major considerations for any kind of ADA compliance:

  1. The dimensions of the item in question
  2. How that item is located in relation to the path of travel

The first item is particularly difficult to surmise because it’s dependent on what the different studies and committees have decided is both achievable for businesses and most helpful for those who need those dimensions.  The first item is also the easiest to look up because it’s specifically dimensioned.

The second item is a little harder to do because it’s according to certain principles, such as the pedestrian envelope.  The pedestrian envelope isn’t a specific construction — it’s an amalgamation of the different needs of pedestrians, be they semi-mobile, on wheels, completely ambulatory, or slightly ambulatory.  Much like egress and ingress (that the Fire Marshal would use to determine the requirements for exit and entrances, as well as the number of those portals), the pedestrian envelope must always have a certain number of requirements.  What this article is about is how the pedestrian envelope affects actual parking spaces.

 

ADA Requirements for the Parking

I don’t intend to discuss too much about the specific parking requirements.  That’s pretty cut and dry, either you meet the measurements or you don’t.  People understand that.  The requirements for parkings for the 2010 ADA has changed a little, but there are exceptions to allow for older CA parking which exceeded the original 1990 ADA parking requirements.  I’ll discuss the parking in a later post but in general parking should have:

  • 60 inches for the non-van access aisle.  Having 60 inches for the van access aisle is required under 2010 ADA but if you have a 96 inch access aisle, you need to have 108 inches of width for the van space.  If your van access aisle is only 60 inches then your van space width needs to be 132 inches.  You measure the spaces from the center of the line to the center of the other lines.  We have worked for places that have been sued because the contractor measured the parking from outside to outside, shaving off 4 inches from the requirements.  This is part of what’s known as “safe harbor” but you can’t rely on the older measurements.  For more details on the concept of the “safe harbor” see:  Department of Justice: ADA Primer for Small Businesses
  • The slope for both the access aisle and the parking space need to be on the same level AND the slopes cannot be greater than 1:48 inches in any direction.  If your parking space slumps, we would recommend that you either consider locating your accessible parking elsewhere, or that you try and level the space.  Van lifts won’t deploy if it detects that the ground is uneven.
  • Signs should be clearly visible to drivers who want to park in the space.
  • The signs should NOT say “handicapped”  (California, Vehicle Code § 22511).  You should replace your sign if it says this, as a lawsuit costs far more than replacing the sign.
  • The van space must be marked as being “van accessible.”
  • Sign heights for CA and the ADA are different, but in general the bottom edge of your sign should be above 80 inches when in the path of travel.  Many business owners seem to think this is funny, asking if they can place the sign at 13 feet above grade.  There is no upper limit, but again the sign needs to be visible to on-coming drivers.

Bewarned: This list is not exhaustive.  Also be aware that laws do change.  This list may become inaccurate.  I’ll try to remember to update it, but if you’re reading this list a year from now, be warned that it may be faulty, especially if the California Code of Regulations Title 24 changes (which is the next known update).

 

ADA Requirements for Path of Travel

The idea behind the path of travel is to provide a zone of safety around the pedestrian.  This zone, with attending requirements needs to go anywhere the public is allowed to go.  There are still ADA requirements for employee only areas (especially as put in by Title 1) but as a rule of thumb, the path of travel only needs to end up to the employee areas, including the door.  Some general path of travel requirements are:

  • No slopes greater than 5% without handrails.  Slopes greater than 5% require handrails and are considered ramps.
  • Door landings do different in size, but in general, each door landing with its latch-side clearance needs to have a steepness no greater than 1:48 in any direction.
  • Accessible paths of travel need to be pointed out with signage
  • At least one of each type of good or service must be located on the path of travel so that everyone has access to it.  This means that a bar upstairs doesn’t need to be accessible if there is an identical bar on the first floor (AND if all the amenities are the same.  This means that if a private party rents out the upstairs area, there is potential for a lawsuit).
  • The California Building Code requires at least 48 inches of width along external paths of travel with a recommendation of 60 inches.  For existing buildings this can go down to 36 inches for the ADA depending on hardship.
  • Objects which protrude into the pedestrian envelope greater than 4 inches for wall mounted objects (12 inches for post mounted) are considered hazards in the path of travel.  A path of travel should be devoid of these objects.  The area of projection is in general, between 27 and 80 inches above the finished floor.  This means that doorways that are lower than 80 inches are considered hazards.  Common protruding objects include fire extinguishers, signs and counters.
  • The cross-slope for a path of travel cannot be greater than 1:48 inches.
  • Detectable warnings are required under the California Building Code for vehicular hazard areas and transit platforms.  This requirement isn’t included under the ADA 2010 but it is included in the ADAAG 2004 and will probably be reintroduced under the Public Right of Way Access Guide which is supposed to come out soon.
  • No change in vertical level greater than 1/2 inch is allowed.  Changes in level between 1/4 and 1/2 inches should be beveled at a 45 degree slope.

Like the list above for parking, this list is not exhaustive and may change as laws and regulations change.  So be warned if you want to use this to assess your site.  Nonetheless, this gives you some idea of what some of the requirements are.

 

Discussion of ADA Accommodations

Parking Space Picture #1: Security as Barriers

Even, if you have not read ADA Requirements above, you should understand why this image is here.  From every disabled parking space there should be an access aisle.  This access aisle must connect to the accessible path of travel.  Failure to do so results in what is known as an inaccessible parking space.

How must this parking space connect?  Firstly, individuals with disabilities tend to travel slower than individuals who do not have disabilities.  One could be in a wheelchair, or they could use a walker, or cane, or be legally blind.  Preferably, paths of travel should not cross vehicular traffic.  But when they inevitably do, areas that are shared by driver and pedestrian must be blue striped and hatched like in the photo.  These areas are known as crosswalks.

Crosswalks are an integral part of the accessible path of travel.For this purpose, the blue striping helps alert both drivers and pedestrians that this is an area reserved for those who walk.

Individuals who are legally blind may not be able to see very well.  They may be able to see the blue striping if it contrasts with the pavement but they definitely cannot see other drivers’ faces.  This means that they cannot tell if a driver sees them or not.  Legally blind individuals look like everyone else.  Drivers may assume that such a person sees them and will stop walking.

Blocking this crosswalk with a fence presents a problem, because now the disabled individual doesn’t know where to go.  They may not see the fence until they walk into it.  Many of you might also notice that this fence is movable.  Besides the fact that I took this photo during business hours (the business expects people to enter and exit through a different driveway) and the fence is closed…

There is however, a second problem with this photo.

If you look at the bottom of the fence, there is a guide rail for the wheel.  This guide rail is larger than 1/2 inches and presents a barrier for individuals who shuffle their feet (or their walker) or individuals in a manual wheelchair.  Many of us who are also not disabled have tripped on such barriers.

The second image presents more parking and path of travel issues.

 

A trash can blocks the accessible aisle.Parking Space Picture #2: Amenities as Barriers

This picture should be  pretty self explanatory.  Here we have an access aisle that is supposed to use the break in the fence as a way of transition onto the general pedestrian path.

But there’s a trash can in the way.  The trash can is not mounted, but it is made of concrete so as to be heavy (so it won’t get stolen).  This means it cannot be moved easily.

Nonetheless, the parking site is small, and this franchisee decided to put the trash can here for the convenience of  their patrons. Whoever decided to put the trash can there doesn’t understand that this presents three problems.

The first issue stems from a reduction in the path of travel.  There isn’t enough space now for the pedestrian to maneuver with their mobility devices around the trash can.  (The access aisle is also rather narrow, being in-compliant, but that’s not easily visible in the photo unless you have experience measuring such a space).  The presence of this barrier prompts the franchisee patron to travel around the back of their vehicle into the drive-thru, presenting a possible opportunity for an accident.  You can imagine the lawsuit which would ensue if that happened!

The second issue stems from a barrier in the access aisle for the van chair lift.  A van chair lift won’t deploy if there’s an object in the way.  Again, the disabled individual is trapped and needs to move their vehicle or park somewhere else.

The third issue is simply that such a trash can would block the passenger side door of anyone trying to exit the vehicle.  Disabled individuals can drive, but sometimes they do not.  Someone who is mobility impaired has enough problems getting in and out of their vehicle.  To ask them to squeeze out of their space presents an added barrier which may be insurmountable.  If such a patron tried to squeeze out of their vehicle, they might fall and hurt themself.  You can imagine the problems here that could result from that situation.

You can bet that this franchisee will probably say Why do we need to comply?  No one who is disabled ever comes in this store! Well, now you know why no one who is disabled goes to their store.  Such potential clients probably saw this trash can and decided it wasn’t worth the hassle.

And after everything is said and done, why make things harder for your customers to give you money?

 

a curb ramp dominates the access aisle, making the aisle and curb ramp difficult to use.Parking Space Picture #3: Curb Ramps

The first two images dealt with issues that a building inspector may not realize as in both situations, it’s possible the owner decided to place those barriers there, unwittingly violating the ADA.  This image is a little different because it requires professional assistance to be implemented.

If the pictured construction looks sharp, it’s because this is brand new, as of 2011.  For those of you who know the construction and design process, it’s more than likely that this construction had to be given a thumbs up from the plan check counter.  Even still, this is a clear case where not only the ADA is violated but also the local building ordinance failed to provide guidance and protection to both future patrons and the building owners.

For those of you curious the violated requirements in question are quoted below:

Built-up curb ramps shall be located so they do not project into vehicular traffic lanes. (1127B.5(1))

Besides the common sense understand that access aisles should not connect to a curb without a curb ramp, there’s also a requirement that curb ramps need to be present where there are curbs.  And curbs there are!

Pedestrian ways which are accessible to persons with disabilities shall be provided from each such parking space to related facilities, including curb cuts or ramps as needed. Ramps shall not encroach into any accessible parking space or the adjacent access aisle. (1129B.3(3), my own emphasis.)

Now if this was not enough, there’s also a requirement for the access aisle slope to be less than what a curb ramp needs in order to be functional.  The presence of any curb ramp in the access aisle would violate this requirement.  For your reference, curb ramps are any sloping surface which transverses a curb.  Curb ramps can slope up to a maximum of 8.33%.  8.33% is 1:12 meaning that for each vertical inch, a curb needs to have a horizontal length of one foot.  In California, curbs are steeper than in most other states.  Usually curbs are six inches (or more) high.

Surface slopes of accessible parking spaces and access aisles shall be the minimum possible and shall not exceed one unit vertical in 50 units horizontal (2-percent slope) in any direction. (1129B.3(4))

I didn’t measure these curbs but obviously, 2% < 8.33%.

Now understand that these three violations are just the California Building Code!  The ADA has matching Accessibility Guidelines also similarly violated.  If anything, in order to be compliant, instead of built-up curb ramps that project into the access aisle there should have been curb cuts installed.  A curb cut would have also used less concrete as the head walk could have been lowered to street level.

Insofar as how this affects people with disabilities, a curb ramp in the access aisle presents an uneven surface such that a van chair lift will not deploy.  Wheelchairs that have to be placed on an uneven surface also have a tendency to roll.  Grandma has enough problems walking for short distances, for her to have to deploy the chair and sit on it is hard enough without also having to chase after the chair.

The access aisle closest to the camera may be wide enough for wheelchair deployment.  But to place a curb ramp alongside it in this manner creates a side flare which becomes a potentially insurmountable barrier.  Transitioning onto steep surfaces tips wheelchairs, making it unsafe.  For someone in a wheelchair to use this ramp, they would have to go into the vehicular right of way to enter it.

The large curb ramp also invites delivery trucks to park in front, blocking the disabled spaces.  The ADA also requires that pedestrian curb ramps not be used as loading ramps.

What’s the solution if you are this building owner?  Well, relocating the access parking might be an option, or extending the cross walk so the curb ramp could be utilized.  This really depends on the rest of the site configuration, however.

 

Well, that’s it for now!

 

ADA Compliance Takeaway

So you understand, the point of all these articles is to educate you readers about what ADA compliance entails.  Both what to do, how to approach it, how to best comply and what the common pitfalls for complete ADA compliance are.

Education is mostly free.  I have to spent a few hours, maybe a day and a half each week, working on articles, and you have to take time to read it, to shift through the multitude of available information.

Ultimately, though, we make a living doing ADA inspections and ADA consultation.

We  do know the laws and ADA regulations, but we don’t know your facility.

I can write about the most common and glaring problems, but I can’t advise you on your particular site.  Even if you submitted pictures, I can’t measure slope or spot issues you may not know about.  If you find this information helpful, feel free to drop an email or a comment.  Submit a picture too, if you like.  I can email you back with an opinion.  (Money is even more appreciated!)

But seriously, give me some genuine feedback and let me know if this was helpful or if you would like me to cover a specific topic.  If I get enough requests, I’ll take the time to write an article on it.  If you’re interested in having us apply our knowledge to your place of business/place of public accommodation in the form of an ADA consultation, by all means call us at 866 982 3212 or email us at help@accesssolutionllc.com.

*Note: The California Building Code may have changed its requirements since the writing of this article.

The best way to avoid ADA Lawsuits is Compliance, not just a matter of Inches and Slopes

Much of the access tips available here: Accessible Accommodation Tips underscore the current fear that business owners have about their buildings not being ADA compliant.

ADA compliance goes far beyond walking through a building with a yardstick or a slope meter.

But even our lawmakers do not understand what’s at stake here.  If you’ve read this blog you should understand by now that the best way to avoid an ADA lawsuit is to become compliant.

What does this mean though, for a good or service to be compliant?  First the lawmakers:

The Bill in Maryland State Senate

Covered by the Maryland Reporter is an ongoing debate in the Maryland State Senate to provide an option for people who feel they have been discriminated against to be able to go to the Maryland Commission to seek injunctive relief rather than suing the place of business.

The state bill would be the first of its kind, if passed, but it would not remove the option for people to sue businesses under the ADA.  What’s the point?

Well, what’s interesting about this bill is that it assumes that the problems of the many ADA lawsuits stem from the lack of alternative channels for the disabled to complain about the business (if the business itself is unwilling to listen) without suing.   Of course, if the individuals suing are asking for money instead of injunctive relief, this bill won’t deter them.

But as an option it sounds good, except as the bulk of the article suggests by past individuals who fought against civil rights, more legislation isn’t really the key.  The root of the many ADA lawsuits don’t stem from a lack of alternate complaint — it’s the lack of compliance with the laws.

I have quoted a relevant portion below:

Several senators talked about lawsuits they knew about where disabled people and crafty attorneys tried to shut down or squeeze money out of establishments. Sen. David Brinkley, R – Frederick County, talked about county restaurants that had shut down because of onerous costs inflicted through lawsuits.

Sen. Allan Kittleman, R-Howard County, said that the lawsuits brought by people with disabilities are a serious issue, referencing a news article a few years old that detailed some of them filed in Maryland. He added that the concerns about discrimination – like the kind Kelley described – are real, even in this day and age. However, he said, anything that’s more onerous for businesses to deal with could be problematic.

“We all want access, but the concern some of us have is the greed for riches,” Kittleman said.

Several senators said that a study couldn’t do much to stop the kinds of lawsuits that were described by their colleagues. Laws are already on the books to try to stop frivolous lawsuits, they argued. Bill sponsor Sen. Lisa Gladden, D-Baltimore City, said the legislation just allows people who feel they were discriminated against to file complaints about it in the local courts closer to home.

“This bill is not new. It’s like moving the car from the driveway to the garage. You don’t change the car, and you don’t move houses,” Gladden said.

Peters’ amendment was rejected with a vote of 18-26.

Sen. Thomas “Mac” Middleton, D-Charles County, recalled that provisions to specifically give protections from false claims were included in a Medicaid bill a couple years ago. He proposed inserting an amendment to do the same thing to protect small businesses from lawsuits filed by disabled people and their lawyers. The bill will be considered further on Friday.

You can read more about it here: http://marylandreporter.com/2011/04/01/blog-discrimination-stories-frivolous-lawsuits-dominate-senate-debate/

This debate brings up a larger issue. There are politicians who side with businesses on this issue, seeking to narrow the scope of the ADA. (To read more about what the current expanded scope of the ADA is, turn here: The Equal Employment Opportunity Commission defines what a Disability is.)

The issue is that there just isn’t much ADA compliance in the public, period.

 

So what is the Point about ADA Compliance?

If you’ve been reading this blog for a while, even a little bit you’ve gleaned some understanding about what ADA compliance is about. Of course, if you are interested in ADA Tips and information on how to be compliant, I would invite you to go one of these links:

Accessible Accommodation Tips
Future ADA Seminars
Guest Articles

Otherwise you’re reading this column about awareness. And there’s much to be aware of and comply with.

The POINT of ADA COMPLIANCE is to provide equal access.  What’s on this blog is just the tip of the proverbial ice berg.

I do intend to keep posting more detailed information.  But to get started, we need some background.

For instance, suing places for their lack of physical ADA compliance is just a tip of the issue.

I’m not going to list all of the possible issues right now, but as a business becomes physically compliant, they still need to audit their own services in other to understand how they are not compliant in other ways.

For example, Senate Bill 3304 was passed last year in 2010.  You can take a look at the details here: Senate Bill 3304.  This bill highlights the need for communication to be provided for people with disabilities.  In other words, if you communicate anything to the public you’re probably assuming that they fit a certain mold, of being a certain age, speaking or reading a certain level of English comprehension… and are not either hearing or sight impaired.

Well, that’s changed.  Senate Bill 3304 is otherwise called 21st Century Communications and Video Accessibility Act, “COAT” has a long list of areas that need to be both closed captioned or available on hearing-impaired or seeing-impaired devices.  I have quoted the entire list of the different sections for you below.

Title I – Communications Access

Section 101:  Definitions.

  • Provides definitions for “advanced communications” (including interconnected and non-interconnected voice over Internet protocol (VoIP), electronic messaging, and interoperable video conferencing services); “consumer-generated media”; and “disability.”

Section 102:  Hearing aid compatibility.

  • Requires telephones used with the Internet to be hearing aid compatible.

Section 103:  Relay services.

  • Permits use of relay services to enable communication with anyone, not just between people with and without disabilities.  So, for example, a TTY user can use relay services to call a person who communicates in American Sign Language using a videophone.
  • Requires Internet-based voice communication service providers to contribute to the Interstate Relay Service Fund.

Section 104:  Access to advanced communications services and equipment.

  • Requires accessible advanced communications equipment and services, if achievable; and, if not achievable, then to make equipment and services compatible with devices commonly used by individuals with disabilities to achieve access, if achievable.
  • Requires access to Internet services built-in to mobile telephone devices, like smart phones, if achievable.
  • Defines “achievable” as reasonable effort or expense, as determined by the FCC.
  • Improves enforcement; requires regular reports by the FCC to Congress; and requires an enforcement study by the Comptroller General.
  • Adds recordkeeping obligations for equipment manufacturers and service providers.
  • Requires a clearinghouse of information on accessible products and services, and public education and outreach.

Section 105:  Relay Services for Deaf-Blind Individuals.

  • Allocates up to $10 million per year from the Interstate Relay Service Fund for equipment used by individuals who are deaf-blind.

Section 106:  Emergency Access Advisory Committee

  • Establishes an Emergency Access Advisory Committee to recommend and for the FCC to adopt rules to achieve reliable and interoperable communications with future Internet-enabled emergency call centers.

Title II – Video Programming

Section 201:  Video Programming and Emergency Access Advisory Committee.

  • Establishes a Video Programming and Emergency Access Advisory Committee to make recommendations about closed captioning, video description, accessible emergency information, user interfaces, and video programming guides and menus.

Section 202:  Video description and closed captioning.

Video Description

  • After 1 year, restores FCC rules requiring 4 hours per week of video description on 9 television channels (top 4 broadcast networks and top 5 cable channels) in the top 25 most populated markets.
  • After 2 years, requires FCC to report to Congress on video description.
  • After 4 years, permits the FCC to increase video description to 7 hours per week on 9 television channels.
  • After 6 years, requires the FCC to apply the video description requirements to the top 60 most populated markets (not just the top 25 most populated markets).
  • After 9 years, requires the FCC to report to Congress on the need for additional markets to carry video description.
  • After 10 years, permits the FCC to expand video description to 10 new markets annually to achieve 100 percent nationwide coverage.

Emergency Information

  • Requires video programming owners, providers, and distributors to make emergency information accessible to individuals who are blind or have low vision.

Closed Captioning

  • Requires captioned television programs to be captioned when delivered over the Internet.
  • Requires the FCC to grant or deny requests for exemption from the closed captioning rules within 12 months.

Section 203:  Closed captioning decoder and video description capability.

  • Requires devices designed to receive or play back video programming, using a picture screen of any size, to be capable of displaying closed captioning, delivering available video description, and making emergency information accessible to individuals who are blind or have low vision, except, devices with picture screens less than 13” must meet these requirements if achievable with reasonable effort or expense.
  • Requires devices designed to record video programming (such as DVRs) to enable the rendering or pass through of closed captions, video description, and emergency information, so viewers can turn the closed captions and video description on/off when played back on a screen of any size.

Section 204:  User interfaces on digital apparatus.

  • Requires devices designed to receive or play back video programming:
  1. to make controls of built-in functions accessible to and usable by individuals who are blind or have low vision, if achievable;
  2. to make controls of built-in functions accessible to and usable by individuals who are blind or have low vision through audio output;
  3. to provide access to built-in closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features.

Section 205:  Access to video programming guides and menus provided on navigation devices.

  • Requires cable/satellite set-top box on-screen text menus and guides to be audibly accessible to individuals who are blind or have low vision, if achievable.
  • To provide access to built-in closed captioning and video description features through a mechanism that is reasonably comparable to a button, key, or icon designated for activating the closed captioning or accessibility features.

Section 206:  Definitions.

  • Provides definitions for Advisory Committee, Chairman, Commission, emergency information, Internet protocol, navigation device, video description, and video programming.

In looking ahead, you can see that the future requirements are going to catch many many many businesses off guard.  It might be a few years before those businesses themselves get sued.  And then the need and demand for these communication devices, (be it mobile hearing aids, readers, screens, and so on) will go up.  Although right now many businesses probably don’t care, thinking such a cost extraneous.

You can see this original page here: COAT page on S. 3304.  Their page is a great resource on what some of these devices will be.

Some of the issues about disabled communication have already caught on.  I link two of them below.

 

More ADA Compliance issues (non-physical access)

Issue #1:  Vegas Airport SUED for their Kiosks

So you’d think large companies with their “Chief Compliance Officers” and their vast resources would be able to catch on and anticipate their customers’ needs and avoid lawsuits by now.

This isn’t the case.

In this article, you can read about how a Baltimore based Blind Group Sued the Las Vegas Airport over their Ticket Kiosks.  (from The Daily Record)

The point is that this airport offered ticket kiosks to their customers as a service so that their customers could get their tickets self-check in and be on their way quicker.  By not upgrading the software on the kiosks so as to include some kind of voice-communication, they were denying this service to the blind.

In the article, upgrading the kiosks could be somewhere between 2k- 30k each.

As an airport, their income is well into the millions, so this represents only a fraction of their budget.  You can be sure you’ll need to do that now, otherwise it could (and will) happen again.

 

Issue #2 FedEx Field SUED for not providing Closed Captioning for Music

Most business owners hearing this would probably think this is a ridiculous issue.  But if you read the article, you’ll see that this football field had been previously sued for not including closed captioning on their screens back in 2003.  Their protest was that closed captioning  “would take up too much room on the screen” — which of course betrays their insensitivity and bias against those who do need it, lest they know not what’s going on.

So, seven years later and having installed the necessary equipment, you’d think the field would have learned their lesson.

What’s interesting about this case is that both sides are claiming that they are willing to cooperate but the other side was being difficult.  I quote the end of the article below so you can decide for yourself.

The court also agreed that song lyrics were an important part of the football experience, even though the plaintiffs had waited to raise that argument until filing summary judgment papers.

“By having access to the lyrics, plaintiffs have the opportunity to participate in the communal entertainment experience,” the court said in a 2-1 decision. “Without access to lyrics played, for example, during cheerleader dance routines and the halftime show, plaintiffs would not fully and equally experience the planned and synchronized promotional entertainment that large stadiums like FedEx Field provide.”

Washington Redskins General Counsel Dave Donovan said that his clients and the stadium owners already were complying with the decision. He said that they were providing, through e-mails, typed lyrics to songs performed by the cheerleaders. “Truth be told, this has only been about attorney’s fees. For years the plaintiffs’ firms managed to keep it alive,” Donovan said.

Joseph Espo, who represented the plaintiffs, said that his clients had tried to settle the case many times and that the attorney fees, which were in the “low six figures,” were a result of the defendants’ unwillingess to settle.

“It completely distorts reality to say that we are the ones who drove the fees,” Espo said. “The decision is a great day for deaf sports fans and reaffirms the obligation of the owners and operators of sports venues to make sure their product is accessible to all of their customers.”

Contact Leigh Jones at ljones@alm.com.

You can read more about how FedEx Field dealt with this lawsuit.  (From National Law Journal.)

Both articles underscores the need for places of public accommodation to understand their role in providing a consistency of availability to each and every of their customers to the best of their ability.

If you expect to take people’s money and provide them with an experience, a good or a service, you must best do your best to provide everyone equal access.

 

The ADA Compliance Takeaway

At this point, you should begin to understand what ‘accessiblity’ means.

This is a far cry from the standard ‘I can fit a wheelchair through my door therefore I am ADA compliant’.

ADA Compliance means that you’ve taken the time and effort to consider and provide equal access to each customer who comes through your door.  ADA Compliance means taking the time and money to hire ADA Experts and implemented the changes they’ve recommended, not just in terms of your physical site, but also how you do business and communicate with your customers.

You can start by checking out the California Relay Service so you can at least talk to customers on the phone whom you may have trouble understanding.  It’s a free service by the state of California available to have a communication assistant coordinate from text to speech, speech to speech, speech to text, and so on.  Please take a look, and train your receptionist on it too!

For additional questions and comments, you can email me at help@accesssolutionllc.com or call 866 982 3212.

ADA Requires Proactive Approach

 

This article from facilitiesnet.com which is geared towards property managers is a short article on ADA compliance.  The most interesting point, I thought, was that for ADA compliance should be proactive because waiting for a lawsuit to be filed could mean that a manager would lose control over the process.

The issue of accessibility is never too far from the minds of maintenance and engineering managers in institutional and commercial facilities. But mid-March 2011 is among the most important moments related to this issue in the last two decades.

Why? Long-awaited final regulations revising existing laws from the U.S. Department of Justice under the Americans with Disabilities Act (ADA), including its ADA Standards for Accessible Design, became effective March 15, 2011.

Joan Stein, president and CEO of Accessibility Development Associates, presented a session on the impact of the new ADA regulations at the recent NFMT Conference and Expo in Baltimore. Attendees learned about some important provisions of the new regulations, as well as the ongoing need to properly address access to their facilities.

You can read the complete article directly here: ADA Compliance Requires a Proactive Approach.

Questions and Answers on the Expanded 2008 Definitions of “What is a Disability”

The US Equal Employment Opportunity Commission has published a Q&A on what a Disability is.  This addresses the 2008 Amendment of the ADA that President Obama signed into law on the celebration of 20 years of the ADA.

Disabilities is of interest to us because under the ADA, individuals with disabilities need to be accommodated.   How that happens at the physical site is what we as ADA consultants help businesses with.

Yet once in a while we get a question from the audience at a seminar or in email as to ‘what is a disability’ – so I decided to post a resource here for you all.

This definition comes from the Federal Government and it applies mostly to Title 1 of the ADA which has to do with employment, but it does affect which members of the public fall under the ADA requirements for accommodation.  For employment issues, please consult an expert on HR issues (which we are not).  California does have their own standards which are much less strict but the online resource for this is fairly poor.  I have linked it here:  http://www.dir.ca.gov/dlse/ada/ada_faq.html and here: http://www.disabilityaccessinfo.ca.gov/lawsregs.htm.  Some of this repeats what we’ve linked elsewhere, but like I said, California doesn’t have a page like this one from EEOC.

The ADA Accommodation interpretation from the Federal Government is quoted below.

Found here:

Final Ruling on the ADA with the 2008 Amendments

 

A summary of the legal principles can be gleamed here:

Federal Definition of Disability

 

But the text from the EEOC is quoted entirely below for your benefit:

 

The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009. This law made a number of significant changes to the definition of “disability.” It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The final regulations were published in the Federal Register on March 25, 2011.

The EEOC is making changes to both the Title I ADA regulations and to the Interpretive Guidance (also known as the Appendix) that was published with the original ADA regulations. The Appendix provides further explanation on how the regulations should be interpreted.

The questions and answers below provide information on the changes made to the regulations as a result of the ADAAA and identify certain regulations that remain the same. The answers below also note where the final regulations differ from what appeared in the Notice of Proposed Rulemaking (NPRM) that was published September 23, 2009. Finally, answers to certain questions provide citations to specific sections of the final regulations and the corresponding section of the Appendix (29 C.F.R. section 1630).

1. Does the ADAAA apply to discriminatory acts that occurred prior to January 1, 2009?

No. The ADAAA does not apply retroactively. For example, the ADAAA would not apply to a situation in which an employer, union, or employment agency allegedly failed to hire, terminated, or denied a reasonable accommodation to someone with a disability in December 2008, even if the person did not file a charge with the EEOC until after January 1, 2009. The original ADA definition of disability would be applied to such a charge. However, the ADAAA would apply to denials of reasonable accommodation where a request was made (or an earlier request was renewed) or to other alleged discriminatory acts that occurred on or after January 1, 2009.

2. What is the purpose of the ADAAA?

Among the purposes of the ADAAA is the reinstatement of a “broad scope of protection” by expanding the definition of the term “disability.” Congress found that persons with many types of impairments – including epilepsy, diabetes, multiple sclerosis, major depression, and bipolar disorder – had been unable to bring ADA claims because they were found not to meet the ADA’s definition of “disability.” Yet, Congress thought that individuals with these and other impairments should be covered. The ADAAA explicitly rejected certain Supreme Court interpretations of the term “disability” and a portion of the EEOC regulations that it found had inappropriately narrowed the definition of disability. As a result of the ADAAA and EEOC’s final regulations, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of “disability.” As a result, many more ADA claims will focus on the merits of the case.

3. Do all of the changes in the ADAAA apply to other titles of the ADA and provisions of the Rehabilitation Act prohibiting disability discrimination by federal agencies, federal contractors, and recipients of federal financial assistance?

Yes. The ADAAA specifically states that all of its changes also apply to:

  • section 501 of the Rehabilitation Act (federal employment),
  • section 503 of the Rehabilitation Act (federal contractors), and
  • section 504 of the Rehabilitation Act (recipients of federal financial assistance and services and programs of federal agencies).

The changes to the definition of disability also apply to all of the ADA’s titles, including Title II (programs and activities of State and local government entities) and Title III (private entities that are considered places of public accommodation). A few provisions of the ADAAA affect only the portions of the ADA and the Rehabilitation Act concerning employment, such as a provision that requires covered entities to show that qualification standards that screen out individuals based on uncorrected vision are job-related and consistent with business necessity, and changes to the general prohibition of discrimination in § 102 of the ADA.

The EEOC’s final regulations apply to Title I of the ADA and section 501 of the Rehabilitation Act, but they do not apply to Titles II and III of the ADA, or sections 503 and 504 of the Rehabilitation Act.

4. Who is required to comply with these regulations?

These regulations apply to all private and state and local government employers with 15 or more employees, employment agencies, labor organizations (unions), and joint labor-management committees. [Section 1630.2(b)] Additionally, section 501 of the Rehabilitation Act applies to federal executive branch agencies regardless of the number of employees they have. The use of the term “covered entity” in this Q&A and the Appendix refers to all such entities.

5. How does the ADAAA define “disability?”

The ADAAA and the final regulations define a disability using a three-pronged approach:

  • a physical or mental impairment that substantially limits one or more major life activities (sometimes referred to in the regulations as an “actual disability”), or
  • a record of a physical or mental impairment that substantially limited a major life activity (“record of”), or
  • when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment that is not both transitory and minor (“regarded as”). [Section 1630.2(g)]

6. Must individuals use a particular prong of the definition of disability when challenging a covered entity’s actions?

Not necessarily. Claims for denial of reasonable accommodation must be brought under one or both of the first two prongs of the definition of disability ( i.e., an actual disability and/or a record of a disability) since the ADAAA specifically states that those covered under only the “regarded as” definition are not entitled to reasonable accommodation. While other types of allegations ( e.g., failure to hire or promote, termination, harassment) may be brought under any of the definitions, an individual may find it easier to claim coverage under the “regarded as” definition of disability. An individual only has to meet one of the three prongs of the definition of “disability.” [Section 1630.2(g)(3) and Appendix Section 1630.2(g)]

7. How do the regulations define the term “physical or mental impairment”?

The regulations define “physical or mental impairment” as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. [Section 1630.2(h)]

The definition of “impairment” in the new regulations is almost identical to the definition in EEOC’s original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA’s examples of major bodily functions. (See Question 8.)

8. What are “major life activities?”

The final regulations provide a non-exhaustive list of examples of major life activities: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. Most of these examples are taken from the ADAAA, which in turn adopted them from the original ADA regulations and EEOC guidances, or from ADA and Rehabilitation Act case law.

The final regulations also state that major life activities include the operation of major bodily functions, including functions of the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions. Although not specifically stated in the NPRM, the final regulations state that major bodily functions include the operation of an individual organ within a body system ( e.g., the operation of the kidney, liver, or pancreas).

As a result of the ADAAA’s recognition of major bodily functions as major life activities, it will be easier to find that individuals with certain types of impairments have a disability. (For examples of impairments affecting major bodily functions that should easily be concluded to meet the first or second part of the definition of “disability,” see Question 19.)

9. When does an impairment “substantially limit” a major life activity?

To have an “actual” disability (or to have a “record of” a disability) an individual must be (or have been) substantially limited in performing a major life activity as compared to most people in the general population. Consistent with the ADAAA, the final regulations adopt “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity. These rules of construction include the following:

  • An impairment need not prevent or severely or significantly limit a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
  • The term “substantially limits” should be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA.
  • The determination of whether an impairment substantially limits a major life activity requires an individualized assessment.
  • In keeping with Congress’ direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.
  • Although determination of whether an impairment substantially limits a major life activity as compared to most people will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate.
  • An individual need only be substantially limited, or have a record of a substantial limitation, in one major life activity to be covered under the first or second prong of the definition of “disability.”

Other rules of construction are discussed in more detail in Questions 10-17. [Section 1630.2(j)(1)(i-v) and (viii)]

10. Do the final regulations require that an impairment last a particular length of time to be considered substantially limiting?

No. As discussed in Question 25, the ADAAA excludes from “regarded as” coverage an actual or perceived impairment that is both transitory ( i.e., will last fewer than six months) and minor. However, neither the ADAAA nor the final regulations apply this exception found in the “regarded as” definition of disability to the other two definitions of disability. One of the “rules of construction” states that the effects of an impairment lasting fewer than six months can be substantially limiting. [Section 1630.2(j)(1)(ix)]

11. Can impairments that are episodic or in remission be considered disabilities?

Yes. The ADAAA and the final regulations specifically state that an impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. This means that chronic impairments with symptoms or effects that are episodic rather than present all the time can be a disability even if the symptoms or effects would only substantially limit a major life activity when the impairment is active. The Appendix provides examples of impairments that may be episodic, including epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. An impairment such as cancer that is in remission but that may possibly return in a substantially limiting form will also be a disability under the ADAAA and the final regulations. [Section 1630.2(j)(1)(vii) and corresponding Appendix section]

12. What are mitigating measures?

Mitigating measures eliminate or reduce the symptoms or impact of an impairment. The ADAAA and the final regulations provide a non-exhaustive list of examples of mitigating measures. They include medication, medical equipment and devices, prosthetic limbs, low vision devices ( e.g., devices that magnify a visual image), hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, and learned behavioral or adaptive neurological modifications. In addition, the final regulations add psychotherapy, behavioral therapy, and physical therapy to the ADAAA’s list of examples. [Section 1630.2(j)(5)]

13. May the positive effects of mitigating measures in limiting the impact of an impairment on performance of a major life activity be considered when determining whether someone has a disability?

No, except for ordinary eyeglasses or contact lenses (see Question 14). The ADAAA and the final regulations direct that the positive (or ameliorative) effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, if a mitigating measure eliminates or reduces the symptoms or impact of an impairment, that fact cannot be used in determining if a person meets the definition of disability. Instead, the determination of disability must focus on whether the individual would be substantially limited in performing a major life activity without the mitigating measure. This may mean focusing on the extent of limitations prior to use of a mitigating measure or on what would happen if the individual ceased using a mitigating measure. [Section 1630.2(j)(1)(vi) and corresponding Appendix section]

14. Does the rule concerning mitigating measures apply to people whose vision is corrected with ordinary eyeglasses or contact lenses?

No. “Ordinary eyeglasses or contact lenses” – defined in the ADAAA and the final regulations as lenses that are “intended to fully correct visual acuity or to eliminate refractive error” – must be considered when determining whether someone has a disability. For example, a person who wears ordinary eyeglasses for a routine vision impairment is not, for that reason, a person with a disability under the ADA. The regulations do not establish a specific level of visual acuity for determining whether eyeglasses or contact lenses should be considered “ordinary.” This determination should be made on a case-by-case basis in light of current and objective medical evidence. [Sections 1630.2(j)(1)(vi) and (j)(6) and corresponding Appendix sections]

15. May the negative effects of a mitigating measure be taken into account in determining whether an individual meets the definition of “disability?”

Yes. The ADAAA allows consideration of the negative effects of a mitigating measure in determining if a disability exists. For example, the side effects that an individual experiences from use of medication for hypertension may be considered in determining whether the individual is substantially limited in a major life activity. However, it will often be unnecessary to consider the non-ameliorative effects of mitigating measures in order to determine whether an individual has a disability. For example, it is unnecessary to consider the burdens associated with receiving dialysis treatment for someone whose kidney function would be substantially limited without this treatment. [Section 1630.2(j)(4)(ii)]

16. May the positive or negative effects of mitigating measures be considered when assessing whether someone is entitled to reasonable accommodation or poses a direct threat?

Yes. The ADAAA’s prohibition on assessing the positive effects of mitigating measures applies only to the determination of whether an individual meets the definition of “disability.” All other determinations – including the need for a reasonable accommodation and whether an individual poses a direct threat – can take into account both the positive and negative effects of a mitigating measure. The negative effects of mitigating measures may include side effects or burdens that using a mitigating measure might impose. For example, someone with diabetes may need breaks to take insulin and monitor blood sugar levels, and someone with kidney disease may need a modified work schedule to receive dialysis treatments. On the other hand, if an individual with a disability uses a mitigating measure that results in no negative effects and eliminates the need for a reasonable accommodation, a covered entity will have no obligation to provide one.

17. Can a covered entity require that an individual use a mitigating measure?

No. A covered entity cannot require an individual to use a mitigating measure. However, failure to use a mitigating measure may affect whether an individual is qualified for a particular job or poses a direct threat. [Appendix Section 1630.2(j)(1)(vi)]

18. After an individualized assessment is done, are there certain impairments that will virtually always be found to result in substantial limitation in performing certain major life activities?

Yes. Certain impairments, due to their inherent nature and the extensive changes Congress made to the definitions of “major life activities” and “substantially limits,” will virtually always be disabilities. (See Questions 8-11 and 13.) For these impairments, the individualized assessment should be particularly simple and straightforward.

19. Do the regulations give any examples of specific impairments that will be easily concluded to substantially limit a major life activity?

Yes. The regulations identify examples of specific impairments that should easily be concluded to be disabilities and examples of major life activities (including major bodily functions) that the impairments substantially limit. The impairments include: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. [Section 1630.2(j)(3)]

20. May the condition, manner, or duration under which a major life activity can be performed be considered in determining whether an impairment is a disability?

Yes. The Commission did not include the concepts of “condition, manner, or duration” (used in the original ADA regulations published in 1991) in the NPRM, believing that use of the terms might lead to the kind of excessive focus on the definition of “disability” that Congress sought to avoid. In response to comments on behalf of both employers and individuals with disabilities, however, we have included the concepts of condition, manner, or duration (where duration refers to the length of time it takes to perform a major life activity or the amount of time the activity can be performed) in the final regulations as facts that may be considered if relevant. But, with respect to many impairments, including those that should easily be concluded to be disabilities (see Question 19), it may be unnecessary to use these concepts to determine whether the impairment substantially limits a major life activity.

Assessing the condition, manner, or duration under which a major life activity can be performed may include consideration of the difficulty, effort, or time required to perform a major life activity; pain experienced when performing a major life activity; the length of time a major life activity can be performed; and/or the way an impairment affects the operation of a major bodily function. [Section 1630.2(j)(4)(i) and (ii) and corresponding Appendix section]

21. When is someone substantially limited in the major life activity of working?

In certain situations, an impairment may limit someone’s ability to perform some aspect of his or her job, but otherwise not substantially limit any other major life activity. In these situations, the individual may be substantially limited in working. However, with all of the changes made by the ADAAA, in particular the inclusion of major bodily functions as major life activities and revisions to the “regarded as” prong of the definition of “disability,” it should generally be unnecessary to determine whether someone is substantially limited in working. [Appendix Section 1630.2(j)]

The final regulations, unlike the NPRM, do not mention the major life activity of working other than by its inclusion in the list of major life activities (see Question 8). However, the Appendix discusses how to determine substantial limitation in a number of major life activities, including working. The Appendix discussion of working, unlike the NPRM, states that substantial limitation in this major life activity will be made with reference to difficulty performing either a “class or broad range of jobs in various classes” rather than a “type of work.” The Appendix also notes that a “class” of work may be determined by reference to the nature of the work ( e.g., commercial truck driving or assembly line jobs), or by reference to job-related requirements that an individual is limited in meeting ( e.g., jobs requiring extensive walking, prolonged standing, and repetitive or heavy lifting). Demonstrating a substantial limitation in performing the unique aspects of a single specific job is not sufficient to establish that a person is substantially limited in the major life activity of working.

22. Does the ADA still exclude from coverage a person who is illegally using drugs?

Yes. The ADAAA did not make changes to the part of the ADA that excludes from coverage a person who currently engages in the illegal use of drugs when a covered entity acts on the basis of such use. However, the ADA also still says that a person who no longer engages in the illegal use of drugs may be an individual with a disability if he or she:

  • has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully, or
  • is participating in a supervised rehabilitation program ( e.g., Alcoholics Anonymous or Narcotics Anonymous). [Section 1630.3(a)-(b)]

23. Is pregnancy a disability under the ADAAA?

No. Pregnancy is not an impairment and therefore cannot be a disability. Certain impairments resulting from pregnancy ( e.g., gestational diabetes), however, may be considered a disability if they substantially limit a major life activity, or if they meet one of the other two definitions of disability discussed below. [Appendix Section 1630.2(h)]

24. When does an individual have a “record of” a disability?

An individual who does not currently have a substantially limiting impairment but who had one in the past meets this definition of “disability.” An individual also can meet the “record of” definition of disability if she was once misclassified as having a substantially limiting impairment ( e.g., someone erroneously deemed to have had a learning disability but who did not).

All of the changes to the first definition of disability discussed in the questions above – including the expanded list of major life activities, the lower threshold for finding a substantial limitation, the clarification that episodic impairments or those in remission may be disabilities, and the requirement to disregard the positive effects of mitigating measures – will apply to evaluating whether an individual meets the “record of” definition of disability. [Section 1630.2(k) and corresponding Appendix section]

25. What does it mean for a covered entity to “regard” an individual as having a disability?

Under the ADAAA and the final regulations, a covered entity “regards” an individual as having a disability if it takes an action prohibited by the ADA ( e.g., failure to hire, termination, or demotion) based on an individual’s impairment or on an impairment the covered entity believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. This new formulation of “regarded as” having a disability is different from the original ADA formulation, which required an individual seeking coverage under this part of the definition to show that a covered entity believed the individual’s impairment (or perceived impairment) substantially limited performance of a major life activity. [Section 1630.2(l)(1)]

A covered entity will regard an individual as having a disability any time it takes a prohibited action against the individual because of an actual or perceived impairment, regardless of whether the covered entity asserts, or even ultimately establishes, a defense for its action. As discussed in Question 26, the legality of the covered entity’s actions is a separate inquiry into the merits of the claim. [Section 1630.2(l)(2)]

The final regulations state that a covered entity may challenge a claim under the “regarded as” prong by showing that the impairment in question, whether actual or perceived, is both transitory and minor. In other words, whether the impairment in question is transitory and minor is a defense available to covered entities. However, a covered entity may not defeat a claim by asserting it believed an impairment was transitory and minor when objectively this is not the case. For example, an employer that fires an employee because he has bipolar disorder, or an employment agency that refuses to refer an applicant because he has bipolar disorder, cannot assert that it believed the impairment was transitory and minor because bipolar disorder is not objectively transitory and minor. [Section 1630.15(f) and corresponding Appendix section]

26. If a covered entity regards an individual as having a disability, does that automatically mean the covered entity has discriminated against the individual?

No. The fact that a covered entity’s action may have been based on an impairment does not necessarily mean that a covered entity engaged in unlawful discrimination. For example, an individual still needs to be qualified for the job he or she holds or desires. Additionally, in some instances, a covered entity may have a defense to an action taken on the basis of an impairment, such as where a particular individual would pose a direct threat or where the covered entity’s action was required by another federal law ( e.g., a law that prohibits individuals with certain impairments from holding certain kinds of jobs). As under current law, a covered entity will be held liable only when an individual proves that the entity engaged in unlawful discrimination under the ADA. [Sections 1630.2(l)(3) and 1630.2(o)(4), and Appendix Sections 1630.2(l) and (o)]

27. Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation?

Yes. Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation. Of course, coverage under the “actual” or “record of” definitions does not, alone, entitle a person to a reasonable accommodation. An individual must be able to show that the disability, or past disability, requires a reasonable accommodation. [Sections 1630.2(k)(3), 1630.2(o)(4), 1630.9(e)]

28. What do the final regulations say about qualification standards based on uncorrected vision?

The ADAAA and the final regulations require that a covered entity show that a challenged qualification standard based on uncorrected vision is job-related and consistent with business necessity. An individual challenging the legality of an uncorrected vision standard need not be a person with a disability, but the individual must have been adversely affected by the standard. The Appendix notes that individuals who are screened out of a job because they cannot meet an uncorrected vision standard will usually meet the “regarded as” definition of disability. [Section 1630.10(b) and corresponding Appendix section]

29. Does the ADAAA change the definitions of “qualified,” “direct threat,” “reasonable accommodation,” and “undue hardship,” or does it change who has the burden of proof in demonstrating any of these requirements?

No. Nearly all of the ADAAA’s changes only affect the definition of “disability.” None of the key ADA terms listed in this Question, or the burdens of proof applicable to each one, have changed. The only provision in the ADAAA affecting the reasonable accommodation obligation is that a covered entity does not have to provide one to an individual who only meets the “regarded as” definition of disability.

30. Why do the regulations no longer refer to a “qualified individual with a disability”?

Consistent with the ADAAA, the final regulations now refer to “individual with a disability” and “qualified individual” as separate terms. They also now prohibit discrimination “on the basis of disability” rather than “against a qualified individual with a disability because of the disability of such individual.” The changes to the regulations reflect changes made by the ADAAA itself, which are intended to make the primary focus of an ADA inquiry whether discrimination occurred, not whether an individual meets the definition of “disability.” However, an individual must still establish that he or she is qualified for the job in question. [Section 1630.4 and the Introduction to the Appendix]

31. Do any of the ADAAA’s changes affect workers’ compensation laws or Federal and State disability benefit programs?

No. The ADAAA and the final regulations specifically state that no changes alter the standards for determining eligibility for benefits under State workers’ compensation laws or under Federal and State disability benefit programs. [Section 1630.1(c)(3) and corresponding Appendix section]

32. May a non-disabled individual bring an ADA claim of discrimination for being denied an employment opportunity or a reasonable accommodation because of lack of a disability?

No. The ADA does not protect an individual who is denied an employment opportunity or a reasonable accommodation because she does not have a disability. [Section 1630.4(b) and corresponding Appendix section]

33. Will the EEOC be updating all of the ADA-related publications on its website to be consistent with the final ADAAA regulations?

Yes. When EEOC updates a particular document, we will note this on our website and explain what changes were made to the document. To avoid misunderstanding, all of these documents currently contain notices about the ADAAA indicating that some of the material in the documents may no longer reflect the law. It should be noted that because the ADAAA focused almost exclusively on changing the definition of “disability,” content in these documents unrelated to the definition of “disability” – including the meaning of qualified, essential functions, reasonable accommodation, and direct threat – remains unaffected by the ADAAA and the final regulations. Therefore, individuals can continue to rely on these parts of the documents as reflecting current law.

Further contact information for the EEOC can be obtained below.

For more information about the ADA, please visit our website or call our toll-free number.

EEOC website: www.eeoc.gov
800-669-4000 (Voice) and 800-669-6820 (TTY)
All calls are confidential.

For more information about reasonable accommodations, contact the Job Accommodation Network. JAN provides free, expert, and confidential guidance on workplace accommodations.

JAN website: www.askjan.org
800-526-7234 (Voice) and 877-781-9403 (TTY)

If you have questions for us on ADA compliance, email me at help@accesssolutionllc.com or call 866 982 3212.

DOJ Settles with Virginia Health System on ADA Compliance

This just in. The Virginal Health Care system has agreed to pay 25k to two individuals for their lack of assisted listening device compliance. Under the ADA all goods ands services need to be accessible. So if you offer a good or service, make sure it is available to everyone! The number of assisted listening devices is dependent on the size of the occupancy.

I have quoted the entire text below.

WASHINGTON – The Justice Department has reached a settlement with Inova Health System to ensure effective communication with individuals who are deaf or hard of hearing in the provision of medical services. The agreement, under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, resolves a complaint that Inova failed to provide sign language interpreters to an expectant mother and others who are deaf and need interpreters to communicate effectively with health care providers.

The department’s lawsuit, filed yesterday with a consent decree in the United States District Court for the Eastern District of Virginia, alleged that Inova Health System violated the ADA and the Rehabilitation Act by failing to provide appropriate auxiliary aids and services, including sign language interpreter services, to deaf individuals at Inova Fairfax Hospital. Because of the hospital’s failure to provide sign language interpreter services, deaf individuals were denied the benefit of effective communication with hospital staff, the opportunity to effectively participate in medical treatment decisions, and the full benefit of health care services provided by Inova Fairfax Hospital, according to the complaint.

“The ADA protects the right of individuals who are deaf or hard of hearing to be able to access medical services, and this settlement is the latest example of the Justice Department’s unwavering commitment to enforcing the ADA,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “This settlement also demonstrates Inova Health System’s commitment to provide effective communication to people who are deaf or hard of hearing.”

“This settlement shows that Inova and the government share the same goal – making sure that deaf and hard of hearing patients can communicate with their doctors, especially at critical moments in their medical care,” said Neil H. MacBride, United States Attorney for the Eastern District of Virginia.

The consent decree, which must be approved by the district court, requires Inova Health System to pay $95,000 to aggrieved individuals and a $25,000 civil penalty; provide training to hospital staff on the requirements of the ADA and the Rehabilitation Act; and adopt specific policies and procedures to ensure that auxiliary aids and services are promptly provided to patients or companions who are deaf or hard of hearing. Inova Health System has also separately agreed to pay a total of $25,000 to two other aggrieved individuals.

The ADA and Rehabilitation Act prohibit discrimination against individuals with disabilities by hospitals. Among other things, the ADA requires doctors, hospitals and other health care providers to provide equal access to patients and companions who are deaf or hard of hearing. When medical services involve important, lengthy or complex oral communications with patients or companions, hospitals are generally required to provide qualified sign language interpreters and other auxiliary aids, free of charge, to individuals who are deaf, are hard of hearing or have speech disabilities. The appropriate auxiliary aid to be provided depends on a variety of factors, including the nature, length and importance of the communication; the communication skills and knowledge of the individual who is deaf or hard of hearing; and the individual’s stated need for a particular type of auxiliary aid.

Those interested in finding out more about this settlement or hospitals’ effective communication obligations under the ADA may call the Justice Department’s toll-free ADA information Line at 800-514-0301 or 800-514-0383 (TDD), or access its ADA website atwww.ada.gov . ADA complaints may be filed by email to ada.complaint@usdoj.gov .

Contact: Department of Justice Main Switchboard – 202-514-2000

You can find a link on this below: 7th Space

Thoughts? Questions? Concerns? help@accesssolutionllc.com or 866 982 3212. Thanks!

SRS Smith, Swimming Pool Access

This is some useful information from SRS Smith which provides Swimming Pool Equipment.

They are located in Oregon and Tennessee but should be familiar with CA pool laws. Their guides are published and I have linked them below as for the Americans with Disabilities Act (2010), they are useful.

Remember, under the ADA 2010 “safe harbor” does not apply to swimming pools which need to be compliant for the new requirements effective back in Sept 15, 2010.

Accessible Swimming Pool Guide

ADA Swim Equipment Guide

 

So if you have a pool and any equipment associated with pools, please look at these standards and see if your pool access is ADA compliant. Also you can contact them at http://poollifts.com/contact/ if you have specific Pool Questions!

 

As always feedback, comment and questions are appreciated.  Call me at 866 982 3212 or email me at help@accesssolutionllc.com.  We want to hear your concerns, thoughts, and feedback!

Donner Lake Kitchen closed due to ADA Lawsuit

Another restaurant closed, this time due to a legal battle with Scott Johnson.

You can catch the story here:

Donner Lake Kitchen, a popular family-owned restaurant in rural Truckee, Calif. is closing its doors following a legal battle with attorney Scott Johnson, who is said to have filed “countless” complaints of lack of handicap accessibility at California businesses. The owner estimates that $20,000-$60,000 in repairs and upgrades would have been needed to bring the dining establishment into ADA compliance.

From Sierra Sun via CJAC via Overlawyered.com.

Find out more about Scott Johnson. This was on Sacramento Channel 10 earlier this year on Feb.

A shame, but don’t let this happen to you. Find out about your ADA liabilities.

Question? Comments? Feedback? Comment below, or email me at help@accesssolutionllc.com or call 866 982 3212.

ADA Speakers, Arcadia Chamber

Hello

I am writing to inform you all of an ADA Presentation set forth by Bob Huff through the Arcadia Chamber on April 1, 2011.

We are NOT speaking at this event, the main presenters are going to be from a group called Lawyers Against Lawsuit Abuse.

We are going to be in attendance.

I do have some reservations as to what this event will have, content wise.  Any kind of education is good for Businesses on ADA Compliance (as businesses lack any kind of knowledge in this area) but as attorneys, they can only react to lawsuits and the legal situation.  As much of the serial litigation that happens stems from a lack of physical compliance, getting an ADA compliance inspection is really the only way to become compliant (and thus, avoid lawsuits).  I doubt that attorneys will do CASp or ADA inspections themselves.

At most they will tell their clients to hire an ADA expert.

The worst, they give their audience the impression that they don’t actually have to comply.

Still, I am curious as to what they will say.  I have copied the information below:

Event Name: Join Senator Bob Huff & Arcadia Chamber
Description: For an ADA Compliance Workshop Keynote Speaker: David Peters CEO & General Counsel Lawyers Against Lawsuit Abuse, APC
Event Date: 04-01-11
Event Time: 10:00 AM – 12:00 PM PST
Location: Baldwin Conference Room Santa Anita Park
285 West Huntington Drive
Arcadia, CA 91107
click here for map…
Contact Person: Leia Hernandez
(phone: 909 598-3981)
Details: The purpose of this Workshop is to educate business about state and federal ADA laws and present guidlines to avoid lawsuits for non-compliance.

PARKING:
Attendees can enter Gate 3 or Gate 8 and follow the signs to the South Admissions Battery. After walking through the gate, go up to the escalator in the breezeway and turn left on the mezzanine level until you reach the Baldwin Conference Room.

This event is FREE to the public.  So it is worth going to, if you are in the area.

Here is the link:  http://www.chamberorganizer.com/Calendar/moreinfo.php?eventid=52323

 

Hope to see you there!

3 Steps to follow after Receiving an ADA Compliance Letter

What do you do when you receive an ADA compliance letter? The general gist is pretty standard:

  • Here are some items that are out of compliance
  • These laws say you are in violation
  • Pay our firm money to settle or we will take you to court

This is a nightmare situation for a small business owner.  You never have the resources to fight this, nor the time to look deeply into it yourself.  You might have heard a few things about this on the news or from your friends.  But you’re not an expert. This situation is bound to give you endless nights tossing and turning, feelings of helplessness, anger and disbelief.  Unfortunately, because of your limited resources, as a small business, you are an easy target for litigants.  So what should you do?

First off, I must offer a disclaimer.

I am not an attorney.

I cannot give you legal advice.  For legal advice, contact an attorney (for attorney info see below at step 1).

The most I can offer here, is our experience dealing with our client’s situations.

This article is meant to help guide you so you can make the right decisions.

Instead of making costly decisions.

What do we see our clients do?

 

The Situation:

An ADA compliance notice should list areas of deficiency in your facility.  The exact details of the violations are always changing so these letters change too.  But in general they follow the three bullet points above.

In the past, such notices were a cookie-cutter list, some of which were invalid and would get thrown out in court. The few items that stuck would prompt you to settle because even if you fought it, those items are legitimate.  In the eyes of the law, really, the only eyes that do count, being in violation with the requirements mean that you need to pay the settlement and then pay both their attorney and your attorney.

Nowadays, the specific tactics have changed as the laws have changed.  Rather than threatening you with a list, half of which could get thrown out, making them look bad, savvier attorneys may threaten you with one or two very simple but legitimate issues.  Then you’re 100% wrong, and you HAVE TO FIX IT AND PAY.

So before we get to the steps, let’s address two scenarios.  What’s the worst that could happen?

The worst that will come from not following these three steps properly is that you will have to fight and lose a lawsuit and then pay the settlement.

Being sued once, if you didn’t learn your lesson the first time, there’s a good chance you will get sued again.  In fact, you could get sued for the very same issue by someone else while you’re still dealing with your first lawsuit.

This has happened to at least one of our previous clients.  They didn’t just refuse our service after asking about what we do during the initial lawsuit.  (They felt that the lawsuit was unjustified because in their words: “We were sure we didn’t do anything wrong.”) They were so emotionally distraught that just talking about the issue caused them to vent at us as though we brought it on them. They didn’t just not hire us, they also refused to hire ANYONE. In fact they refused to DO ANYTHING, as though their stubbornness would make the situation go away. Unfortunately, it did not.

It took them two lawsuits which they both settled before they hired us.

In a different situation, a quasi-government entity had me do an ADA compliance study. The laws yielded them some results which we presented. For what ever reason, this entity decided that an alternate construction was the most cost effective solution, despite our best efforts to warn them that this “solution” broke other laws.

They then got sued by someone else for their brand new construction.

Don’t be stubborn. Compliance is compliance. If you don’t hire us at least follow these steps, get an attorney and then get an ADA expert to study your site.

The Absolute BEST thing you can do to avoid such a letter is to be compliant.  Since the savvier attorneys who litigate such causes have been sending out ADA experts to measure and document violations, your best bet is to become ADA compliant.  You can do this a variety of ways.  You could hire ADA consultants like ourselves, or you could try and do it yourself.  Both options are presented here:

ADA Consultation Guide: What we do and where you can go to learn

Barring that, if you do have such a letter, let me emphasize a few things.

There are three steps to take.

Only three.   Sounds simple enough?  READ ON!

 

Step 1. The most important thing is to answer the letter.

I cannot emphasize this enough.

If you ignore the letter, in 90 days you will probably be sued in court.  Do NOT throw away the letter. Throwing the letter away or ignoring it, compounds the problem, so that not only did you violate the ADA (thereby committing under the Unruh Civil Rights Act, making your violations an act of discrimination) but you also don’t show good faith.  Intention does not matter.  Your recorded, documented actions do matter.  They matter a great deal.  Ignorance is not an excuse, it’s nearly an admission that you did something wrong, by not being responsible enough to do what you should have done in the first place.

You must be a responsible.

Doing otherwise only weakens your position.

So how do you answer it?  You can write the letter yourself, or you can hire an ADA experienced attorney.  We would recommend the individuals mentioned here:

Frank Chen

Kevin Sawkins

Both of these attorneys are experienced with handling ADA cases.

Even if you write the letter yourself, we still recommend that you hire an ADA consultant.  An attorney by the very nature of their trade can only help you AFTER YOU ARE SUED.  To prevent being sued in the first place, it logically follows that you should become ADA compliant.

 

Step 2. Get an ADA Compliance Survey

This step seems like a no-brainer.  But you wouldn’t believe the number of people who email or call and insist that their store is compliant because we have wheelchair users come in all the time!

This claim is the equivalent to a business addressing a lawsuit from one of their employees by claiming that their business is compliant because the other employees did not also sue.  This isn’t a defensible position as people don’t have to sue if they don’t want to.  Rather than argue with this excuse, business owners must understand, like it or not, if you open a business, you must follow the letter of the law.

If anything, getting an ADA expert who look at your site to verify the claims is one possible way to get around the problem.  Remember, they are suing you, so the burden of proof is on their side.

You must get the facts.  ADA violations are very dependent on specific measurements.  After all it’s the specific measurements which have gotten tens of thousands of small businesses in trouble.

If this litigant is new to this field, they could have made some errors somewhere, such as claiming that van parking cannot be shared with other access aisles.  We’ve helped attorneys with this.  The intermix of California Building Code and ADA Access Guidelines with all the continuing discussion can be very confusing, even to professionals.  Many websites contain faulty information, or outdated information as do many ADA guidebooks.  A plaintiff new to this field might try to sue you for something that you aren’t required to do.

So getting an expert to verify the claims and then having your attorney talk to their attorney is the best way to resolve this issue.

What kind of expert should you get?  The highest license available on ADA expertise (in fact the only one) is called CASp.  You can read about it here.

ADA Compliance: Why CASp?

The (inexpensive) Cost of ADA Compliance

At this point you should understand that step 2 by itself won’t solve the issue.  You MUST FIX THE VIOLATIONS.  No survey, not even a CASp inspection will solve ADA violations by itself.  You must actively address the issues.  Which brings us to Step 3.

 

Step 3. Remediate the ADA Violations

So now you have the ADA violations in hand.  What then?  When following up with clients, we are always astounded to hear that they did nothing with our report.  Or they gave it to a contractor who took the report away and never returned.  Maybe I should stop being so surprised.

Ideally, this step should have occurred first.

Doing Step 3 before any notice is received will help PREVENT LAWSUITS IN THE FIRST PLACE.

Most lawsuits that happen ask for settlement money, looking for the simplest violations.  These are the most egregious violations since not repairing items that could be easily dealt with shows negligence on the part of ignorant businesses.  The best thing to do then, is to remove that ignorance and do your best to comply with the law.

This doesn’t mean you have to fix everything.  Many of the items are of small expensive.

For instance, insulating pipes could cost as little as 30 dollars.  But buying the proper insulation and not addressing the hot water pipes even if you wrapped the drain, is a problem.  I’ve seen pipes wrapped in duct tape and packing foam.  Is that insulating?  After a while, these things get dirty, get torn off and look awful.  Is that really a solution in the long run?  (Incidentally, Here is a website that sells pipe insulation materials: Plumberex, ADA compliant Solutions.  We met them at a disabilities trade-show last year.)

But insulation as duct tape and foam… that’s something for the courts to decide.  Duct tape may save you 30 dollars, perhaps, but it is grounds for a potential lawsuit.

But wait, why are you trying to save $30 when a lawsuit will cost you thousands?  Aren’t you complying to avoid a lawsuit in the first place?

Best to do is to understand what the law is, and then exceed the letter of the law.

 

ADA Compliance Takeaway

So okay, these steps are long enough for a blog article.

Step 3 can take some time and effort.  If you don’t have sole responsibility for your parking lot, you may have to talk with your property manager.  I cover those issues above in a link, but I’ll link it again: The (inexpensive) Cost of ADA Compliance

Compliance can take time.  If you are sued, your number one priority should be to hire an attorney, or at least talk to a knowledgeable one.  We work with attorneys, give us a call we can introduce you to some experienced attorneys.

But the urgency of being in a lawsuit situation aside,  obviously education is the way to understand your legal liability.  Step 3 is the only step that will prevent future lawsuits.

To tell you the truth, it’s often too late to do anything but settle after you are sued.  A violation is in fact a violation. Preventive measures can only happen BEFORE a lawsuit.

Obviously then, education is the key.

Compliance is the solution.

But wait.  Compliance requires special knowledge.  Doing your taxes isn’t that easy, and doing a business’s taxes requires quite a bit of commitment upfront and on-going.

So why not hire a good CPA?

It takes architects about 3 months to learn all about the ADA, the different laws and so on.  The problem isn’t the specific building code (although all those numbers can be confusing), it’s all the legality that surrounds it.  And of course, they also need real world experience.

For someone with no experience in this field, it will take them about 6 months before they become able to inspect properties on their own.  At least a year before they can begin to advise people on what to do.  So why wait a year and spend all that effort to save several hundred dollars? Why not hire a good and experienced ADA expert?

Best to get that CASP report right away.

 

Thoughts?  Questions?  Comment below for feedback, or for more immediate and confidential assistance, call 866 982 3212 or email us at help@accesssolutionllc.com

ADA Lawsuits prompt a Grace Period Bill in Congress

The majority of lawsuits arising from ADA violations are aimed at smaller businesses.  Many of those lawsuits hurt businesses as the steep cost of defending those lawsuits for violations (which most likely are, strictly speaking, in fact violations) prompt potentially large settlements.  These settlements are usually at least $4,000.00 + attorneys fees.

Well, now there’s a new bill aimed at helping those small businesses.  This bills hopes to deter serial litigants from threatening small businesses for items which are readily achievable.  Will this bill pass? It’s labled H.R. 881.

March 7, 2011 (San Diego’s East County) — Congressman Duncan Hunter (R-El Cajon) recently introduced legislation aimed at curtailing what he views as frivolous lawsuits against small businesses that are allegedly in violation of the Americans with Disabilities Act (ADA). The bill, entitled the ADA Notification Act, would provide businesses accused of an ADA violation with a 90-day grace period to make necessary modifications.

“It’s bad enough that small businesses are facing enormous challenges due to the current economic downturn,” Rep. Hunter said in a press release. “What they don’t need to contend with are any other unnecessary obstacles that impede growth and competitiveness. But that’s exactly what’s happening in San Diego with predatory ADA lawsuits.”

Our thoughts on this proposed legislation is that yes, businesses should become compliant, they should at least fix the items which are readily achievable (which is a classification of items relatively inexpensive to fix — and also the class of ADA violations which are in fact the most sued over) and yes, businesses should absolutely understand what laws effect their bottom line.

But rather than introducing more government oversight and legislation, the key to compliance should be EDUCATION not legislation.

Will this 90 day grace period prompt a business to fix the items in question properly?

Will a 90 day grace period be long enough for a business to find, qualify and hire a contractor to properly install items like grab bars, signage, restroom amenities and parking striping?

The area of law surrounding the ADA have multiple requirements. It’s possible that hiring any contractor will not only the business MORE LIABLE but also leave the contractor liable as well.

That would be a disastrous waste of resources and funds!

Yes, it’s as I’ve been writing all along. Education and then proper action towards ADA COMPLIANCE is the only way to avoid lawsuits.

If you have any questions about the particulars of YOUR ADA COMPLIANCE best email us at help@accesssolutionllc.com or call 866 982 3212.

You can read more about this by clicking the link below.
Read from East County via Overlawyered.Com and CJAC.