Frequently Asked Questions
Employment
State/Local Government
Public Accommodations
Employment
Q. What employers are covered by title I of the ADA, and when is
the coverage effective?
A. The title I employment provisions apply to private employers,
State and local governments, employment agencies, and labor unions.
Employers with 25 or more employees were covered as of July 26,
1992. Employers with 15 or more employees were covered two years
later, beginning July 26, 1994.
Q. What practices and activities are covered by the employment
nondiscrimination requirements?
A. The ADA prohibits discrimination in all employment practices,
including job application procedures, hiring, firing, advancement,
compensation, training, and other terms, conditions, and privileges
of employment. It applies to recruitment, advertising, tenure,
layoff, leave, fringe benefits, and all other employment-related
activities.
Q. Who is protected from employment discrimination?
A. Employment discrimination is prohibited against "qualified
individuals with disabilities." This includes applicants for
employment and employees. An individual is considered to have a
"disability" if s/he has a physical or mental impairment that
substantially limits one or more major life activities, has a record
of such an impairment, or is regarded as having such an impairment.
Persons discriminated against because they have a known association
or relationship with an individual with a disability also are
protected.
The first part of the definition makes clear that the ADA applies to
persons who have impairments and that these must substantially limit
major life activities such as seeing, hearing, speaking, walking,
breathing, performing manual tasks, learning, caring for oneself,
and working. An individual with epilepsy, paralysis, HIV infection,
AIDS, a substantial hearing or visual impairment, mental
retardation, or a specific learning disability is covered, but an
individual with a minor, no chronic condition of short duration,
such as a sprain, broken limb, or the flu, generally would not be
covered.
The second part of the definition protecting individuals with a
record of a disability would cover, for example, a person who has
recovered from cancer or mental illness.
The third part of the definition protects individuals who are
regarded as having a substantially limiting impairment, even though
they may not have such an impairment. For example, this provision
would protect a qualified individual with a severe facial
disfigurement from being denied employment because an employer
feared the "negative reactions" of customers or co-workers.
Q. Who is a "qualified individual with a disability?"
A. A qualified individual with a disability is a person who
meets legitimate skill, experience, education, or other requirements
of an employment position that s/he holds or seeks, and who can
perform the essential functions of the position with or without
reasonable accommodation. Requiring the ability to perform
"essential" functions assures that an individual with a disability
will not be considered unqualified simply because of inability to
perform marginal or incidental job functions. If the individual is
qualified to perform essential job functions except for limitations
caused by a disability, the employer must consider whether the
individual could perform these functions with a reasonable
accommodation. If a written job description has been prepared in
advance of advertising or interviewing applicants for a job, this
will be considered as evidence, although not conclusive evidence, of
the essential functions of the job.
Q. Does an employer have to give preference to a qualified
applicant with a disability over other applicants?
A. No. An employer is free to select the most qualified
applicant available and to make decisions based on reasons unrelated
to a disability. For example, suppose two persons apply for a job as
a typist and an essential function of the job is to type 75 words
per minute accurately. One applicant, an individual with a
disability, who is provided with a reasonable accommodation for a
typing test, types 50 words per minute; the other applicant who has
no disability accurately types 75 words per minute. The employer can
hire the applicant with the higher typing speed, if typing speed is
needed for successful performance of the job.
Q. What limitations does the ADA impose on medical examinations
and inquiries about disability?
A. An employer may not ask or require a job applicant to take a
medical examination before making a job offer. It cannot make any
pre-employment inquiry about a disability or the nature or severity
of a disability. An employer may, however, ask questions about the
ability to perform specific job functions and may, with certain
limitations, ask an individual with a disability to describe or
demonstrate how s/he would perform these functions.
An employer may condition a job offer on the satisfactory result of
a post-offer medical examination or medical inquiry if this is
required of all entering employees in the same job category. A
post-offer examination or inquiry does not have to be job-related
and consistent with business necessity.
However, if an individual is not hired because a post-offer medical
examination or inquiry reveals a disability, the reason(s) for not
hiring must be job-related and consistent with business necessity.
The employer also must show that no reasonable accommodation was
available that would enable the individual to perform the essential
job functions, or that accommodation would impose an undue hardship.
A post-offer medical examination may disqualify an individual if the
employer can demonstrate that the individual would pose a "direct
threat" in the workplace (i.e., a significant risk of substantial
harm to the health or safety of the individual or others) that
cannot be eliminated or reduced below the direct threat level
through reasonable accommodation. Such a disqualification is
job-related and consistent with business necessity. A post-offer
medical examination may not disqualify an individual with a
disability who is currently able to perform essential job functions
because of speculation that the disability may cause a risk of
future injury.
After a person starts work, a medical examination or inquiry of an
employee must be job-related and consistent with business necessity.
Employers may conduct employee medical examinations where there is
evidence of a job performance or safety problem, examinations
required by other Federal laws, examinations to determine current
unfitness to perform a particular job, and voluntary examinations
that are part of employee health programs.
Information from all medical examinations and inquiries must be kept
apart from general personnel files as a separate, confidential
medical record, available only under limited conditions.
Tests for illegal use of drugs are not medical examinations under
the ADA and are not subject to the restrictions of such
examinations.
Q. When can an employer ask an applicant to "self-identify" as
having a disability?
A. Federal contractors and subcontractors who are covered by the
affirmative action requirements of section 503 of the Rehabilitation
Act of 1973 may invite individuals with disabilities to identify
themselves on a job application form or by other pre-employment
inquiry, to satisfy the section 503 affirmative action requirements.
Employers who request such information must observe section 503
requirements regarding the manner in which such information is
requested and used, and the procedures for maintaining such
information as a separate, confidential record, apart from regular
personnel records.
A pre-employment inquiry about a disability is allowed if required
by another Federal law or regulation such as those applicable to
disabled veterans and veterans of the Vietnam era. Pre-employment
inquiries about disabilities may be necessary under such laws to
identify applicants or clients with disabilities in order to provide
them with required special services.
Q. Does the ADA require employers to develop written job
descriptions?
A. No. The ADA does not require employers to develop or maintain
job descriptions. However, a written job description that is
prepared before advertising or interviewing applicants for a job
will be considered as evidence along with other relevant factors. If
an employer uses job descriptions, they should be reviewed to make
sure they accurately reflect the actual functions of a job. A job
description will be most helpful if it focuses on the results or
outcome of a job function, not solely on the way it customarily is
performed. A reasonable accommodation may enable a person with a
disability to accomplish a job function in a manner that is
different from the way an employee who is not disabled may
accomplish the same function.
Q. What is "reasonable accommodation?"
A. Reasonable accommodation is any modification or adjustment to
a job or the work environment that will enable a qualified applicant
or employee with a disability to participate in the application
process or to perform essential job functions. Reasonable
accommodation also includes adjustments to assure that a qualified
individual with a disability has rights and privileges in employment
equal to those of employees without disabilities.
Q. What are some of the accommodations applicants and employees
may need?
A. Examples of reasonable accommodation include making existing
facilities used by employees readily accessible to and usable by an
individual with a disability; restructuring a job; modifying work
schedules; acquiring or modifying equipment; providing qualified
readers or interpreters; or appropriately modifying examinations,
training, or other programs. Reasonable accommodation also may
include reassigning a current employee to a vacant position for
which the individual is qualified, if the person is unable to do the
original job because of a disability even with an accommodation.
However, there is no obligation to find a position for an applicant
who is not qualified for the position sought. Employers are not
required to lower quality or quantity standards as an accommodation;
nor are they obligated to provide personal use items such as glasses
or hearing aids.
The decision as to the appropriate accommodation must be based on
the particular facts of each case. In selecting the particular type
of reasonable accommodation to provide, the principal test is that o
effectiveness, i.e., whether the accommodation will provide an
opportunity for a person with a disability to achieve the same level
of performance and to enjoy benefits equal to those of an average,
similarly situated person without a disability. However, the
accommodation does not have to ensure equal results or provide
exactly the same benefits.
Q. When is an employer required to make a reasonable
accommodation?
A. An employer is only required to accommodate a "known"
disability of a qualified applicant or employee. The requirement
generally will be triggered by a request from an individual with a
disability, who frequently will be able to suggest an appropriate
accommodation. Accommodations must be made on an individual basis,
because the nature and extent of a disabling condition and the
requirements of a job will vary in each case. If the individual does
not request an accommodation, the employer is not obligated to
provide one except where an individual's known disability impairs
his/her ability to know of, or effectively communicate a need for,
an accommodation that is obvious to the employer. If a person with a
disability requests, but cannot suggest, an appropriate
accommodation, the employer and the individual should work together
to identify one. There are also many public and private resources
that can provide assistance without cost.
Q. What are the limitations on the obligation to make a
reasonable accommodation?
A. The individual with a disability requiring the accommodation
must be otherwise qualified, and the disability must be known to the
employer. In addition, an employer is not required to make an
accommodation if it would impose an "undue hardship" on the
operation of the employer's business. "Undue hardship" is defined as
an "action requiring significant difficulty or expense" when
considered in light of a number of factors. These factors include
the nature and cost of the accommodation in relation to the size,
resources, nature, and structure of the employer's operation. Undue
hardship is determined on a case-by-case basis. Where the facility
making the accommodation is part of a larger entity, the structure
and overall resources of the larger organization would be
considered, as well as the financial and administrative relationship
of the facility to the larger organization. In general, a larger
employer with greater resources would be expected to make
accommodations requiring greater effort or expense than would be
required of a smaller employer with fewer resources.
If a particular accommodation would be an undue hardship, the
employer must try to identify another accommodation that will not
pose such a hardship. Also, if the cost of an accommodation would
impose an undue hardship on the employer, the individual with a
disability should be given the option of paying that portion of the
cost which would constitute an undue hardship or providing the
accommodation.
Q. Must an employer modify existing facilities to make them
accessible?
A. The employer's obligation under title I is to provide access
for an individual applicant to participate in the job
application process, and for an individual employee with a
disability to perform the essential functions of his/her job,
including access to a building, to the work site, to needed
equipment, and to all facilities used by employees. For example, if
an employee lounge is located in a place inaccessible to an employee
using a wheelchair, the lounge might be modified or relocated, or
comparable facilities might be provided in a location that would
enable the individual to take a break with co-workers. The employer
must provide such access unless it would cause an undue hardship.
Under title I, an employer s not required to make its existing
facilities accessible until a particular applicant or employee with
a particular disability needs an accommodation, and then the
modifications should meet that individual's work needs. However,
employers should consider initiating changes that will provide
general accessibility, particularly for job applicants, since it is
likely that people with disabilities will be applying for jobs. The
employer does not have to make changes to provide access in places
or facilities that will not be used by that individual for
employment-related activities or benefits.
Q. Can an employer be required to reallocate an essential
function of a job to another employee as a reasonable accommodation?
A. No. An employer is not required to reallocate essential
functions of a job as a reasonable accommodation.
Q. Can an employer be required to modify, adjust, or make other
reasonable accommodations in the way a test is given to a qualified
applicant or employee with a disability?
A. Yes. Accommodations may be needed to assure that tests or
examinations measure the actual ability of an individual to perform
job functions rather than reflect limitations caused by the
disability. Tests should be given to people who have sensory,
speaking, or manual impairments in a format that does not require
the use of the impaired skill, unless it is a job-related skill that
the test is designed to measure.
Q. Can an employer maintain existing production/performance
standards for an employee with a disability?
A. An employer can hold employees with disabilities to the same
standards of production/performance as other similarly situated
employees without disabilities for performing essential job
functions, with or without reasonable accommodation. An employer
also can hold employees with disabilities to the same standards of
production/performance as other employees regarding marginal
functions unless the disability affects the person's ability to
perform those marginal functions. If the ability to perform marginal
functions is affected by the disability, the employer must provide
some type of reasonable accommodation such as job restructuring but
may not exclude an individual with a disability who is
satisfactorily performing a jobs essential functions.
Q. Can an employer establish specific attendance and leave
policies?
A. An employer can establish attendance and leave policies that
are uniformly applied to all employees, regardless of disability,
but may not refuse leave needed by an employee with a disability if
other employees get such leave. An employer also may be required to
make adjustments in leave policy as a reasonable accommodation. The
employer is not obligated to provide additional paid leave, but
accommodations may include leave flexibility and unpaid leave.
A uniformly applied leave policy does not violate the ADA because it
has a more severe effect on an individual because of his/her
disability. However, if an individual with a disability requests a
modification of such a policy as a reasonable accommodation, an
employer may be required to provide it, unless it would impose an
undue hardship.
Q. Can an employer consider health and safety when deciding
whether to hire an applicant or retain an employee with a
disability?
A. Yes. The ADA permits employers to establish qualification
standards that will exclude individuals who pose a direct threat --
i.e., a significant risk of substantial harm -- to the health or
safety of the individual or of others, if that risk cannot be
eliminated or reduced below the level of a direct threat by
reasonable accommodation. However, an employer may not simply assume
that a threat exists; the employer must establish through objective,
medically supportable methods that there is significant risk that
substantial harm could occur in the workplace. By requiring
employers to make individualized judgments based on reliable medical
or other objective evidence rather than on generalizations,
ignorance, fear, patronizing attitudes, or stereotypes, the ADA
recognizes the need to balance the interests of people with
disabilities against the legitimate interests of employers in
maintaining a safe workplace.
Q. Are applicants or employees who are currently illegally using
drugs covered by the ADA?
A. No. Individuals who currently engage in the illegal use of
drugs are specifically excluded from the definition of a "qualified
individual with a disability" protected by the ADA when the employer
takes action on the basis of their drug use.
Q. Is testing for the illegal use of drugs permissible under the
ADA?
A. Yes. A test for the illegal use of drugs is not considered a
medical examination under the ADA; therefore, employers may conduct
such testing of applicants or employees and make employment
decisions based on the results. The ADA does not encourage,
prohibit, or authorize drug tests.
If the results of a drug test reveal the presence of a lawfully
prescribed drug or other medical information, such information must
be treated as a confidential medical record.
Q. Are alcoholics covered by the ADA?
A. Yes. While a current illegal user of drugs is not
protected by the ADA if an employer acts on the basis of such use, a
person who currently uses alcohol is not automatically denied
protection. An alcoholic is a person with a disability and is
protected by the ADA if s/he is qualified to perform the essential
functions of the job. An employer may be required to provide an
accommodation to an alcoholic. However, an employer can discipline,
discharge or deny employment to an alcoholic whose use of alcohol
adversely affects job performance or conduct. An employer also may
prohibit the use of alcohol in the workplace and can require that
employees not be under the influence of alcohol.
Q. Does the ADA override Federal and State health and safety
laws?
A. The ADA does not override health and safety requirements
established under other Federal laws even if a standard adversely
affects the employment of an individual with a disability. If a
standard is required by another Federal law, an employer must comply
with it and does not have to show that the standard is job related
and consistent with business necessity. For example, employers must
conform to health and safety requirements of the U.S. Occupational
Safety and Health Administration. However, an employer still has the
obligation under the ADA to consider whether there is a reasonable
accommodation, consistent with the standards of other Federal laws,
that will prevent exclusion of qualified individuals with
disabilities who can perform jobs without violating the standards of
those laws. If an employer can comply with both the ADA and another
Federal law, then the employer must do so.
The ADA does not override State or local laws designed to protect
public health and safety, except where such laws conflict with the
ADA requirements. If there is a State or local law that would
exclude an individual with a disability from a particular job or
profession because of a health or safety risk, the employer still
must assess whether a particular individual would pose a "direct
threat" to health or safety under the ADA standard. If such a
"direct threat" exists, the employer must consider whether it could
be eliminated or reduced below the level of a "direct threat" by
reasonable accommodation. An employer cannot rely on a State or
local law that conflicts with ADA requirements as a defense to a
charge of discrimination.
Q. How does the ADA affect workers' compensation programs?
A. Only injured workers who meet the ADA's definition of an
"individual with a disability" will be considered disabled under the
ADA, regardless of whether they satisfy criteria for receiving
benefits under workers' compensation or other disability laws. A
worker also must be "qualified" (with or without reasonable
accommodation) to be protected by the ADA. Work-related injuries do
not always cause physical or mental impairments severe enough to
"substantially limit" a major life activity. Also, many on-the-job
injuries cause temporary impairments which heal within a short
period of time with little or no long-term or permanent impact.
Therefore, many injured workers who qualify for benefits under
workers' compensation or other disability benefits laws may not be
protected by the ADA. An employer must consider work-related
injuries on a case-by-case basis to know if a worker is protected by
the ADA.
An employer may not inquire into an applicant's workers'
compensation history before making a conditional offer of
employment. After making a conditional job offer, an employer may
inquire about a person's workers compensation history in a medical
inquiry or examination that is required of all applicants in the
same job category. However, even after a conditional offer has been
made, an employer cannot require a potential employee to have a
medical examination because a response to a medical inquiry (as
opposed to results from a medical examination) shows a previous
on-the-job injury unless all applicants in the same job category are
required to have an examination. Also, an employer may not base an
employment decision on the speculation that an applicant may cause
increased workers' compensation costs in the future. However, an
employer may refuse to hire, or may discharge an individual who is
not currently able to perform a job without posing a significant
risk of substantial harm to the health or safety of the individual
or others, if the risk cannot be eliminated or reduced by reasonable
accommodation.
An employer may refuse to hire or may fire a person who knowingly
provides a false answer to a lawful post-offer inquiry about his/her
condition or worker's compensation history.
An employer also may submit medical information and records
concerning employees and applicants (obtained after a conditional
job offer) to state workers' compensation offices and "second
injury" funds without violating ADA confidentiality requirements.
Q. What is discrimination based on "relationship or association"
under the ADA?
A. The ADA prohibits discrimination based on relationship or
association in order to protect individuals from actions based on
unfounded assumptions that their relationship to a person with a
disability would affect their job performance, and from actions
caused by bias or misinformation concerning certain disabilities.
For example, this provision would protect a person whose spouse has
a disability from being denied employment because of an employer's
unfounded assumption that the applicant would use excessive leave to
care for the spouse. It also would protect an individual who does
volunteer work for people with AIDS from a discriminatory employment
action motivated by that relationship or association.
Q. How are the employment provisions enforced?
A. The employment provisions of the ADA are enforced under the
same procedures now applicable to race, color, sex, national origin,
and religious discrimination under title VII of the Civil Rights Act
of 1964, as amended, and the Civil Rights Act of 1991. Complaints
regarding actions that occurred on or after July 26, 1992, may be
filed with the Equal Employment Opportunity Commission or designated
State human rights agencies. Available remedies will include hiring,
reinstatement, promotion, back pay, front pay, restored benefits,
reasonable accommodation, attorneys' fees, expert witness fees, and
court costs. Compensatory and punitive damages also may be available
in cases of intentional discrimination or where an employer fails to
make a good faith effort to provide a reasonable accommodation.
Q. What financial assistance is available to employers to help
them make reasonable accommodations and comply with the ADA?
A. A special tax credit is available to help smaller employers
make accommodations required by the ADA. An eligible small business
may take a tax credit of up to $5,000 per year for accommodations
made to comply with the ADA. The credit is available for one-half
the cost of "eligible access expenditures" that are more than $250
but less than $10,250.
A full tax deduction, up to $15,000 per year, also is available to
any business for expenses of removing qualified architectural or
transportation barriers. Expenses covered include costs of removing
barriers created by steps, narrow doors, inaccessible parking
spaces, restroom facilities, and transportation vehicles. Additional
information discussing the tax credits and deductions is contained
in the Department of Justice's ADA Tax Incentive Packet for
Businesses available from the ADA Information Line, see page 29.
Information about the tax credit and tax deduction can also be
obtained from a local IRS office, or by contacting the Office of
Chief Counsel, Internal Revenue Service.
Q. What are an employer's recordkeeping requirements under
the employment provisions of the ADA?
A. An employer must maintain records such as application forms
submitted by applicants and other records related to hiring,
requests for reasonable accommodation, promotion, demotion,
transfer, lay-off or termination, rates of pay or other terms of
compensation, and selection for training or apprenticeship for one
year after making the record or taking the action described
(whichever occurs later). If a charge of discrimination is filed or
an action is brought by EEOC, an employer must save all personnel
records related to the charge until final disposition of the charge.
Q. Does the ADA require that an employer post a notice explaining
its requirements?
A. The ADA requires that employers post a notice describing the
provisions of the ADA. It must be made accessible, as needed, to
individuals with disabilities. A poster is available from EEOC
summarizing the requirements of the ADA and other Federal legal
requirements for nondiscrimination for which EEOC has enforcement
responsibility. EEOC also provides guidance on making this
information available in accessible formats for people with
disabilities.
Q. What resources does the Equal Employment Opportunity
Commission have available to help employers and people with
disabilities understand and comply with the employment requirements
of the ADA?
A. The Equal Employment Opportunity Commission has developed
several resources to help employers and people with disabilities
understand and comply with the employment provisions of the ADA.
Resources include:
A Technical Assistance Manual that provides "how-to"
guidance on the employment provisions of the ADA as well as
a resource directory to help individuals find specific
information.
A variety of brochures, booklets, and fact sheets.
State and
Local Governments
Q. Does the ADA apply to State and local governments?
A. Title II of the ADA prohibits discrimination against
qualified individuals with disabilities in all programs,
activities, and services of public entities. It applies to all
State and local governments, their departments and agencies, and
any other instrumentalities or special purpose districts of
State or local governments. It clarifies the requirements of
section 504 of the Rehabilitation Act of 1973 for public
transportation systems that receive Federal financial
assistance, and extends coverage to all public entities that
provide public transportation, whether or not they receive
Federal financial assistance. It establishes detailed standards
for the operation of public transit systems, including commuter
and intercity rail (AMTRAK).
Q. When do the requirements for State and local governments
become effective?
A. In general, they became effective on January 26, 1992.
Q. How does title II affect participation in a State or local
government's programs, activities, and services?
A. A state or local government must eliminate any
eligibility criteria for participation in programs, activities,
and services that screen out or tend to screen out persons with
disabilities, unless it can establish that the requirements are
necessary for the provision of the service, program, or
activity. The State or local government may, however, adopt
legitimate safety requirements necessary for safe operation if
they are based on real risks, not on stereotypes or
generalizations about individuals with disabilities. Finally, a
public entity must reasonably modify its policies, practices, or
procedures to avoid discrimination. If the public entity can
demonstrate that a particular modification would fundamentally
alter the nature of its service, program, or activity, it is not
required to make that modification.
Q. Does title II cover a public entity's employment policies
and practices?
A. Yes. Title II prohibits all public entities, regardless
of the size of their work force, from discriminating in
employment against qualified individuals with disabilities. In
addition to title II's employment coverage, title I of the ADA
and section 504 of the Rehabilitation Act of 1973 prohibit
employment discrimination against qualified individuals with
disabilities by certain public entities
Q. What changes must a public entity make to its existing
facilities to make them accessible?
A. A public entity must ensure that individuals with
disabilities are not excluded from services, programs, and
activities because existing buildings are inaccessible. A State
or local government's programs, when viewed in their entirety,
must be readily accessible to and usable by individuals with
disabilities. This standard, known as "program accessibility,"
applies to facilities of a public entity that existed on
January 26, 1992. Public entities do not necessarily have to
make each of their existing facilities accessible. They may
provide program accessibility by a number of methods including
alteration of existing facilities, acquisition or construction
of additional facilities, relocation of a service or program to
an accessible facility, or provision of services at alternate
accessible sites.
Q. When must structural changes be made to attain program
accessibility?
A. Structural changes needed for program accessibility must
be made as expeditiously as possible, but no later than January
26, 1995. This three-year time period is not a grace period; all
alterations must be accomplished as expeditiously as possible. A
public entity that employs 50 or more persons must have
developed a transition plan by July 26, 1992, setting forth the
steps necessary to complete such changes.
Q. What is a self-evaluation?
A. A self-evaluation is a public entity's assessment of its
current policies and practices. The self-evaluation identifies
and corrects those policies and practices that are inconsistent
with title II's requirements. All public entities must complete
a self-evaluation by January 26, 1993. A public entity that
employs 50 or more employees must retain its self-evaluation for
three years. Other public entities are not required to retain
their self-evaluations, but are encouraged to do so because
these documents evidence a public entity's good faith efforts to
comply with title II's requirements.
Q. What does title II require for new construction and
alterations?
A. The ADA requires that all new buildings constructed by a
State or local government be accessible. In addition, when a
State or local government undertakes alterations to a building,
it must make the altered portions accessible.
Q. How will a State or local government know that a new
building is accessible?
A. A State or local government will be in compliance with
the ADA for new construction and alterations if it follows
either of two accessibility standards. It can choose either the
Uniform Federal Accessibility Standards or the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities, which is the standard that must be used for public
accommodations and commercial facilities under title III of the
ADA. If the State or local government chooses the ADA
Accessibility Guidelines, it is not entitled to the elevator
exemption (which permits certain private buildings under three
stories or under 3,000 square feet per floor to be constructed
without an elevator).
Q. What requirements apply to a public entity's emergency
telephone services, such as 911?
A. State and local agencies that provide emergency telephone
services must provide "direct access" to individuals who rely on
a TDD or computer modem for telephone communication. Telephone
access through a third party or through a relay service does not
satisfy the requirement for direct access. Where a public entity
provides 911 telephone service, it may not substitute a separate
seven-digit telephone line as the sole means for access to 911
services by nonvoice users. A public entity may, however,
provide a separate seven-digit line for the exclusive use of
nonvoice callers in addition to providing direct access for such
calls to its 911 line.
Q. Does title II require that telephone emergency service
systems be compatible with all formats used for nonvoice
communications?
A. No. At present, telephone emergency services must only be
compatible with the Baudot format. Until it can be technically
proven that communications in another format can operate in a
reliable and compatible manner in a given telephone emergency
environment, a public entity would not be required to provide
direct access to computer modems using formats other than Baudot.
Q. How will the ADA's requirements for State and local
governments be enforced?
A. Private individuals may bring lawsuits to enforce their
rights under title II and may receive the same remedies as those
provided under section 504 of the Rehabilitation Act of 1973,
including reasonable attorney's fees. Individuals may also file
complaints with eight designated Federal agencies, including the
Department of Justice and the Department of Transportation.
Public
Accommodations
Q. What are public accommodations?
A. A public accommodation is a private entity that owns,
operates, leases, or leases to, a place of public accommodation.
Places of public accommodation include a wide range of entities,
such as restaurants, hotels, theaters, doctors' offices,
pharmacies, retail stores, museums, libraries, parks, private
schools, and day care centers. Private clubs and religious
organizations are exempt from the ADA's title III requirements
for public accommodations.
Q. Will the ADA have any effect on the eligibility criteria
used by public accommodations to determine who may receive
services?
A. Yes. If a criterion screens out or tends to screen out
individuals with disabilities, it may only be used if necessary
for the provision of the services. For instance, it would be a
violation for a retail store to have a rule excluding all deaf
persons from entering the premises, or for a movie theater to
exclude all individuals with cerebral palsy. More subtle forms
of discrimination are also prohibited. For example, requiring
presentation of a driver's license as the sole acceptable means
of identification for purposes of paying by check could
constitute discrimination against individuals with vision
impairments. This would be true if such individuals are
ineligible to receive licenses and the use of an alternative
means of identification is feasible.
Q. Does the ADA allow public accommodations to take safety
factors into consideration in providing services to individuals
with disabilities?
A. The ADA expressly provides that a public accommodation
may exclude an individual, if that individual poses a direct
threat to the health or safety of others that cannot be
mitigated by appropriate modifications in the public
accommodation's policies or procedures, or by the provision of
auxiliary aids. A public accommodation will be permitted to
establish objective safety criteria for the operation of its
business; however, any safety standard must be based on
objective requirements rather than stereotypes or
generalizations about the ability of persons with disabilities
to participate in an activity.
Q. Are there any limits on the kinds of modifications in
policies, practices, and procedures required by the ADA?
A. Yes. The ADA does not require modifications that would
fundamentally alter the nature of the services provided by the
public accommodation. For example, it would not be
discriminatory for a physician specialist who treats only burn
patients to refer a deaf individual to another physician for
treatment of a broken limb or respiratory ailment. To require a
physician to accept patients outside of his or her specialty
would fundamentally alter the nature of the medical practice.
Q. What kinds of auxiliary aids and services are required by
the ADA to ensure effective communication with individuals with
hearing or vision impairments?
A. Appropriate auxiliary aids and services may include
services and devices such as qualified interpreters, assistive
listening devices, notetakers, and written materials for
individuals with hearing impairments; and qualified readers,
taped texts, and Brailled or large print materials for
individuals with vision impairments.
Q. Are there any limitations on the ADA's auxiliary aids
requirements?
A. Yes. The ADA does not require the provision of any
auxiliary aid that would result in an undue burden or in a
fundamental alteration in the nature of the goods or services
provided by a public accommodation. However, the public
accommodation is not relieved from the duty to furnish an
alternative auxiliary aid, if available, that would not result
in a fundamental alteration or undue burden. Both of these
limitations are derived from existing regulations and caselaw
under section 504 of the Rehabilitation Act and are to be
determined on a case-by-case basis.
Q. Will restaurants be required to have brailled menus?
A. No, not if waiters or other employees are made available
to read the menu to a blind customer.
Q. Will a clothing store be required to have brailled price
tags?
A. No, not if sales personnel could provide price
information orally upon request.
Q. Will a bookstore be required to maintain a sign language
interpreter on its staff in order to communicate with deaf
customers?
A. No, not if employees communicate by pen and notepad when
necessary.
Q. Are there any limitations on the ADA's barrier removal
requirements for existing facilities?
A. Yes. Barrier removal need be accomplished only when it is
"readily achievable" to do so.
Q. What does the term "readily achievable" mean?
A. It means "easily accomplishable and able to be carried
out without much difficulty or expense."
Q. What are examples of the types of modifications that would
be readily achievable in most cases?
A. Examples include the simple ramping of a few steps, the
installation of grab bars where only routine reinforcement of
the wall is required, the lowering of telephones, and similar
modest adjustments.
Q. Will businesses need to rearrange furniture and display
racks?
A. Possibly. For example, restaurants may need to rearrange
tables and department stores may need to adjust their layout of
racks and shelves in order to permit access to wheelchair users.
Q. Will businesses need to install elevators?
A. Businesses are not required to retrofit their facilities
to install elevators unless such installation is readily
achievable, which is unlikely in most cases.
Q. When barrier removal is not readily achievable, what kinds
of alternative steps are required by the ADA?
A. Alternatives may include such measures as in-store
assistance for removing articles from inaccessible shelves, home
delivery of groceries, or coming to the door to receive or
return dry cleaning.
Q. Must alternative steps be taken without regard to cost?
A. No, only readily achievable alternative steps must be
undertaken.
Q. How is "readily achievable" determined in a multisite
business?
A. In determining whether an action to make a public
accommodation accessible would be "readily achievable," the
overall size of the parent corporation or entity is only one
factor to be considered. The ADA also permits consideration of
the financial resources of the particular facility or facilities
involved and the administrative or fiscal relationship of the
facility or facilities to the parent entity.
Q. Who has responsibility for ADA compliance in leased places
of public accommodation, the landlord or the tenant?
A. The ADA places the legal obligation to remove barriers or
provide auxiliary aids and services on both the landlord and the
tenant. The landlord and the tenant may decide by lease who will
actually make the changes and provide the aids and services, but
both remain legally responsible.
Q. What does the ADA require in new construction?
A. The ADA requires that all new construction of places of
public accommodation, as well as of "commercial facilities" such
as office buildings, be accessible. Elevators are generally not
required in facilities under three stories or with fewer than
3,000 square feet per floor, unless the building is a shopping
center or mall; the professional office of a health care
provider; a terminal, depot, or other public transit station; or
an airport passenger terminal.
Q. Is it expensive to make all newly constructed places of
public accommodation and commercial facilities accessible?
A. The cost of incorporating accessibility features in new
construction is less than one percent of construction costs.
This is a small price in relation to the economic benefits to be
derived from full accessibility in the future, such as increased
employment and consumer spending and decreased welfare
dependency.
Q. Must every feature of a new facility be accessible?
A. No, only a specified number of elements such as parking
spaces and drinking fountains must be made accessible in order
for a facility to be "readily accessible." Certain nonoccupiable
spaces such as elevator pits, elevator penthouses, and piping or
equipment catwalks need not be accessible.
Q. What are the ADA requirements for altering facilities?
A. All alterations that could affect the usability of a
facility must be made in an accessible manner to the maximum
extent feasible. For example, if during renovations a doorway is
being relocated, the new doorway must be wide enough to meet the
new construction standard for accessibility. When alterations
are made to a primary function area, such as the lobby of a bank
or the dining area of a cafeteria, an accessible path of travel
to the altered area must also be provided. The bathrooms,
telephones, and drinking fountains serving that area must also
be made accessible. These additional accessibility alterations
are only required to the extent that the added accessibility
costs do not exceed 20% of the cost of the original alteration.
Elevators are generally not required in facilities under three
stories or with fewer than 3,000 square feet per floor, unless
the building is a shopping center or mall; the professional
office of a health care provider; a terminal, depot, or other
public transit station; or an airport passenger terminal.
Q. Does the ADA permit an individual with a disability to sue
a business when that individual believes that discrimination is
about to occur, or must the individual wait for the
discrimination to occur?
A. The ADA public accommodations provisions permit an
individual to allege discrimination based on a reasonable belief
that discrimination is about to occur. This provision, for
example, allows a person who uses a wheelchair to challenge the
planned construction of a new place of public accommodation,
such as a shopping mall, that would not be accessible to
individuals who use wheelchairs. The resolution of such
challenges prior to the construction of an inaccessible facility
would enable any necessary remedial measures to be incorporated
in the building at the planning stage, when such changes would
be relatively inexpensive.
Q. How does the ADA affect existing State and local building
codes?
A. Existing codes remain in effect. The ADA allows the
Attorney General to certify that a State law, local building
code, or similar ordinance that establishes accessibility
requirements meets or exceeds the minimum accessibility
requirements for public accommodations and commercial
facilities. Any State or local government may apply for
certification of its code or ordinance. The Attorney General can
certify a code or ordinance only after prior notice and a public
hearing at which interested people, including individuals with
disabilities, are provided an opportunity to testify against the
certification.
Q. What is the effect of certification of a State or local
code or ordinance?
A. Certification can be advantageous if an entity has
constructed or altered a facility according to a certified code
or ordinance. If someone later brings an enforcement proceeding
against the entity, the certification is considered "rebuttable
evidence" that the State law or local ordinance meets or exceeds
the minimum requirements of the ADA. In other words, the entity
can argue that the construction or alteration met the
requirements of the ADA because it was done in compliance with
the State or local code that had been certified.
Q. When are the public accommodations provisions effective?
A. In general, they became effective on January 26, 1992.
Q. How will the public accommodations provisions be enforced?
A. Private individuals may bring lawsuits in which they can
obtain court orders to stop discrimination. Individuals may also
file complaints with the Attorney General, who is authorized to
bring lawsuits in cases of general public importance or where a
pattern o practice of discrimination is alleged. In these
cases, the Attorney General may seek monetary damages and civil
penalties. Civil penalties may not exceed $55,000 for a first
violation or $110,000 for any subsequent violation.
Miscellaneous
Q. Is the Federal government covered by the ADA?
A. The ADA does not cover the executive branch of the
Federal government. The executive branch continues to be covered
by title V of the Rehabilitation Act of 1973, which prohibits
discrimination in services and employment on the basis of
handicap and which is a model for the requirements of the ADA.
The ADA, however, does cover Congress and other entities in the
legislative branch of the Federal government.
Q. Does the ADA cover private apartments and private homes?
A. The ADA does not cover strictly residential private
apartments and homes. If, however, a place of public
accommodation, such as a doctor's office or day care center, is
located in a private residence, those portions of the residence
used for that purpose are subject to the ADA's requirements.
Q. Does the ADA cover air transportation?
A. Discrimination by air carriers in areas other than
employment is not covered by the ADA but rather by the Air
Carrier Access Act (49 U.S.C. 1374 (c)).
Q. What are the ADA's requirements for public transit buses?
A. The Department of Transportation has issued regulations
mandating accessible public transit vehicles and facilities. The
regulations include requirements that all new fixed-route,
public transit buses be accessible and that supplementary
paratransit services be provided for those individuals with
disabilities who cannot use fixed-route bus service. For
information on how to contact the Department of Transportation,
see page 29.
Q. How will the ADA make telecommunications accessible?
A. The ADA requires the establishment of telephone relay
services for individuals who use telecommunications devices for
deaf persons (TDD's) or similar devices. The Federal
Communications Commission has issued regulations specifying
standards for the operation of these services.
Q. Are businesses entitled to any tax benefit to help pay for
the cost of compliance?
A. As amended in 1990, the Internal Revenue Code allows a
deduction of up to $15,000 per year for expenses associated with
the removal of qualified architectural and transportation
barriers. The 1990 amendment also permits eligible small
businesses to receive a tax credit for certain costs of
compliance with the ADA. An eligible small business is one whose
gross receipts do not exceed $1,000,000 or whose workforce does
not consist of more than 30 full-time workers. Qualifying
businesses may claim a credit of up to 50 percent of eligible
access expenditures that exceed $250 but do not exceed $10,250.
Examples of eligible access expenditures include the necessary
and reasonable costs of removing architectural, physical,
communications, and transportation barriers; providing readers,
interpreters, and other auxiliary aids; and acquiring or
modifying equipment or devices.
