News from the Federal Agencies
Equal Employment Opportunity CommissionEEOC
The Equal Employment Opportunity Commission has issued a new fact sheet on the topic of employment tests and selection procedures used TO screen applicants and employees. The technical assistance material focuses on best practices that employers can follow when using employment tests and other screening devices. The document highlights recent Commission enforcement actions in this area. Read more about fact sheet on employment testingat http://eeoc.gov/press/12-3-07.html.
The U.S. Equal Employment Opportunity Commission (EEOC) is asking individuals contacting the agency through its toll-free numbers to be patient as they transition to an in-house call center. The EEOC is ending December 12 a three year program where calls were handled by a National Call Center located in Lawrence, KS. The new in-house system will be staffed by federal employees but the agency projects it will take several months to get the system up and running. In the meantime calls will be handled by regional and district EEOC offices. Read more about in-house call centers http://www.eeoc.gov/press/11-7-07.html.
U.S. Department of Justice
The U.S. Department of Justice has entered into a consent decree with Madison Square Garden, Ltd. The Justice Department alleged that the owners/operators of Madison Square Garden failed to remove over 3000 barriers that could have been readily removed as required by Title III of the ADA. Over the next few years WHEELCHAIR AND COMPANION SEATING LOCATIONS will be provided, 20 seats that have no arm rests or are equipped with folding or removable arm rests will be installed and address other barriers including alarms, elevators, restaurants and bars, counters, doors and doorways, assistive listening system, toilet rooms, protruding objects, accessible routes, signage, public telephones, ramps and slopes. Read more about the Madison Square Garden at http://www.usdoj.gov/crt/ada/madisonsqgrnd.htm.
The U.S. Department of Justice announced a settlement agreement with SWARTHMORE COLLEGE following a Department compliance review. The settlement requires that the College located in Swarthmore, PA, modify policies, practices, and procedures, remove architectural barriers in existing facilities where readily achievable, undertake alterations in compliance with the ADA standards for accessible design, ensure that all newly constructed buildings are readily accessible to and usable by individuals with disabilities and ensure that no individual with a disability is discriminated against on the basis of disability. Read more about SWARTHMORE COLLEGE at http://www.ada.gov/swarthmore.htm.
The U.S. Department of Justice has filed a motion to join Michigan Paralyzed Veterans of America v. University of Michigan lawsuit. The lawsuit against the University of Michigan alleges non-compliance with accessibility requirements to its football stadium and planned renovations. The Department in its motion alleges that the University is in violation of Section 504 of the Rehabilitation Act and Title II of the ADA. Read more Paralyzed Veterans of America v. University of Michigan lawsuit at http://www.usdoj.gov/opa/pr/2007/November/07_crt_937.html.
The U.S. Department of Justice has posted Issue 21 of Disability Rights Online News to its web site. This publication is a bi-monthly update on the Civil Rights Division's activities in the area of disability rights. The new issue was posted on November 2, 2007. Read more about the Disability Rights Online News at http://www.ada.gov/disabilitynews.htm.
U.S. Small Business Administration
The Small Business Administration, Office of Advocacy, has issued a study on the impact of the proposed revisions of the Americans with Disabilities Act standards for accessible design on small businesses. The study was commissioned to determine the cost impact on businesses. The report states that small firms face substantial costs from the adoption of the barrier removal requirements in the 2004 ADA revisions. The study, prepared by E.H. Pechan & Associates, was submitted to the U.S. Department of Justice on November 29, 2007. Read more about the impact of the proposed revisions of the ADA at http://www.sba.gov/advo/laws/comments/ada.html.
Great Lakes In Focus
Best Practices in Maintaining Accessible Features
State and local governments and businesses must maintain in operable working condition the features that are needed to provide access to services, programs, activities, and goods to individuals with disabilities. This includes elevators and lifts, curb ramps at intersections, accessible parking spaces, ramps to building or facility entrances, door hardware, and accessible toilet facilities. Isolated or temporary interruptions in service or access are permitted for maintenance or repairs.
Developing policies, procedures and practices on how to keep accessible features accessible can help ensure that individuals with disabilities have an opportunity to benefit from the services and goods being provided and avoid complaints.
Several organizations/agencies have provided information on the best practices they have adopted/developed to maintain in working order the accessible features of their facilities and properties. It may be possible to use the below information to develop your organizations best practices or to enhance practices your organization is already using. Here are some examples of what other agencies are practicing:
Carol Reott Hotchkiss is the Facilities Access Specialist for the University of Wisconsin - Madison. In this role she has an impact on the policies and procedures the University employ's in order to maintain access.
Snow Removal
Snow removal and maintaining accessible pedestrian routes is challenging in the northern climes. The priority for clearing snow is usually roads, then sidewalks, then curb ramps. After large snowstorms it may be several days before all pedestrian routes and curb ramps are cleared. The University of Wisconsin - Madison has established a process where individuals with mobility impairments can request a Physical Plant staff person accompany them to clear snow from curb ramps along their pedestrian route.
Transit
Bus and Paratransit on campus is provided in partnership with Madison Metro, all buses are wheelchair accessible. Metro Paratransit assigns a minivan as one of their primary Paratransit vehicles for downtown Madison and the University of Wisconsin - Madison campus. This improves service because the minivan can maneuver closer to some building entrances on our crowded campus. Since some building loading docks also serve as accessible entrances it is important that these two uses coexist on campus. This means that parking restrictions in these areas must be enforced and that trucks and Paratransit vehicles must occasionally take turns at an entrance.
Parking
The UW has about 13,000 parking stalls spread out in 107 different lots on the 900 acre campus. Accessible parking stalls are located closest to accessible entrances to buildings and accessible stalls can be added or moved when necessary to meet the needs of persons with mobility impairments.
The UW has processes in place to provide parking permits for those with temporary disabilities as well as permanent disabilities. Permit holders with disabilities are allowed to park in most any permit stall on campus including stalls without access aisles. This helps provide parking stalls for individuals who require access aisles for deploying a ramp or lift.
Areas of Rescue Assistance
The UW has 110 areas of rescue assistance in 13 different buildings on campus. One concern that has been expressed is that the required signage does not convey enough information about how these areas should be used. After completing an inventory of ARAs on campus, signs clarifying their use were added.
General Maintenance of Accessible Features
The UW Physical Plant maintains a central response system on campus where accessibility problems can be reported and addressed. Problems with elevators and automatic door openers are common accessibility calls received by Physical Plant. When appropriate, Physical Plant gives top priority to resolving these problems.
Rick Edwards is the ADA Compliance Director for the Indiana Department of Natural Resources. He is responsible for access to 23 State Parks, 9 Reservoirs, 13 State Forests, 7 State Park Inns, 23 Fish and Wildlife Areas, 15 State Museums and Historic Sites, hundreds of Public Access Sites and 15 Nature Preserves. This translates to hundreds of thousands of acres of land and water, trails and buildings. Below are his tips for best practices for ensuring access for individuals with disabilities.
With the size and number of issues needing to be dealt with, I believe the best way is to make sure staff at each property understand what the requirements are and the reasons why they are important. As with any task, you will be met with varying degrees of success, sometimes your fault; sometimes no fault at all.
If I had to point to one factor, one reason for success, in large or small areas, it would be education.
Informing the Property Manager, Maintenance staff, Office Manager of the reason for having 18 inches of clear floor space on the pull side of a door, for example, and showing the difficulty (even danger) of not providing this, leaves a clear picture in their minds. The likelihood of finding a trash can or planter inadvertently placed into this space decreases proportionally with each reminder. Few things as a picture of a wheelchair user struggling with a too narrow doorway, leave a more indelible impression, unless it would be personal experience. Some of my more accessible areas are where a staff member has personal experience with a disability. Baring this, scheduling property wide training in the area of ADA with visual examples of access provides lasting impressions that translate into successful access. I have found that most people are not intending to create barriers for people with disabilities. Most are simply either unaware of the requirements for access or unaware of how to accomplish compliance. Making it important enough for those who can make the necessary changes is a vital part of the process. Either by presenting a clear visual reason, or simply sharing the fact that you have support from the boss, there must be a reason why this is a priority for them as well. Staff have hundreds of things on their plate every day. Educating, reminding, creating a visual reminder and showing support from the top down, helps make this a priority for the on-site personnel as well.
But education alone does not assure success. It must be coupled with one other feature: follow-up.
I try to accomplish this several ways. First is ADA Committee made up of a representative from each of the property-holding Divisions. These individuals have more than a passing understanding of the ADA and are located high enough in the division to "have the ear" of the Division Director but also have regular contact with their various properties. I maintain regular contact with these people to make sure I'm aware of projects in the works (and to make sure they know I'm watching).
The second step in the process of follow-up involves the ADA Transition Plan. The Plan was developed by having the property staff apply the ADA Checklist. This Checklist ( http://www.usdoj.gov/crt/ada/racheck.pdf ) helped identify primary barriers on the property that prevent access by people with disabilities. Although the Plan is somewhat outdated - some buildings are gone, some renovated and many barriers identified have been removed - it still offers a baseline for insuring things are addressed.
Because I have such good support from the top, down, the Engineering Division (that develops plans for new construction) makes sure all plans for new construction comes across my desk before work is begun. I have two state maps in my office that show where each property is. The first identifies where projects are being developed; the second where problems are identified by various means. For example, a member of the public may call, someone on the property may express an interest in doing something, or I might identify a problem during a visit I make. These maps help me keep an eye on ongoing projects as well as provide a visual of the areas getting attention, needing attention, and showing where tax dollars are being spent. Whenever I visit a property, seeing the map helps to remind me to look at the work being done as well as the work needing to be done. Also when I get a call from some property, I can ask about the particular issue.
The most important part of the follow-up feature is communication. E-mail, phone calls, visits, all work together to insure a successful program. As I indicated, with all the other priorities staff have, it becomes easy to let access be buried for more pressing matters. With education and follow-up driving the plan, access becomes a priority not easily forgotten even when any one person is gone.
David Robb is the Disability Services Coordinator for the Village of Arlington Heights, IL. In this role he provides technical assistance to Village staff, individuals with disabilities, businesses, architects among others on disability laws and regulations including the Americans with Disabilities Act.
Is it really necessary to restate the obvious? How can something be considered accessible if it is not maintained in a state of being accessible? It almost seems redundant to have a regulation that requires maintenance of accessible features. The term "accessible feature" implies a state of readiness for use by persons with disabilities.
However redundant the regulation might seem, it is a practical regulation never-the-less. The regulation draws attention to the fact that even though something may have been designed and built accessible, it may subsequently fall into disrepair, be damaged or rendered inoperable and unusable by persons with disabilities, the intended benefactors of such accessible features.
The regulations permit isolated or temporary interruptions in service or access due to maintenance and repairs, caused by temporary breakdowns. It is not practical to expect that accessible features can be maintained 100 percent of the time, but that ought to be the goal. The very act of maintaining or repairing an accessible feature may render it inoperable and unusable by persons with disabilities.
The ultimate goal is to maintain accessible features throughout the community. This is accomplished through the implementation of policies and practices employed by a municipality and by municipal enforcement of local ordinances affecting public accommodations.
With the passage of the Americans with Disabilities Act in 1990 the Village of Arlington Heights responded by completing a "Self Evaluation" and "Transition Plan" before the July 26, 1992 deadline. In addition, the Village has long since completed removal of all the barriers identified in the Transition Plan by the January 26, 1995 deadline.
Subsequent to that initial period of learning about and identifying barriers to accessibility, the Village of Arlington Heights has implemented policies and practices that prevent the installation of barriers and also works to remove existing barriers whenever possible.
For public accommodations prevention and removal of barriers is accomplished through enforcement of accessibility laws and ordinances. More often than not this occurs in the plan review and building permit process. At the initial stages of development inaccessible design is caught and corrected before it is built. Also for substantial alterations where barriers exist access laws and ordinances usually require their removal.
Rather than attempting to identify each and every element within the public domain that would qualify as an "accessible feature," we will look at some examples of practices employed by the Village in addressing the ADA requirement of maintaining accessible features.
This can be split into two categories including public facilities (those operated or maintained by the Village of Arlington Heights) and public accommodations (private businesses, including for profit businesses and nonprofits).
Looking at public facilities a common element that needs maintaining is public sidewalks. The Arlington Heights Engineering Department oversees the "sidewalk program" which is comprised of 393 miles of sidewalk.
It has been Village practice to repair upheavals and other trip hazards resulting from cracks or breaks in the pavement. The Village schedules repairs in each quadrant based on the severity of the trip hazard as measured in inches. The more severe the trip hazard the sooner the repair is scheduled giving the worst hazards a higher priority. Such hazards also pose as barriers to accessibility for wheelchair users who may not be able to roll over such upheavals or breaks in the sidewalk. The completed repairs than provide a benefit to the whole community by making the pedestrian route safer and accessible to all.
Another example of maintenance of accessible features is with snow removal. Along with the 230 miles of streets cleared of snow and ice accumulations the Village's Public Works Department clears eight miles of public sidewalk around Village owned buildings, public parking lots, around areas that lead to the downtown Metra train station, around suburban Pace bus stop shelters and on some school routes.
While the Village does not enforce an ordinance for business and residential property owners to remove snow and ice accumulations, the Village encourages such practices. This is accomplished through public service announcements aired on the cable access channel and through an audio-loop for callers placed on hold who have called the Village.
The public service announcement aired on the cable access channel includes a segment that encourages residents to clear corners and sidewalks for passage of neighbors who have disabilities including residents that are blind or who use wheelchairs.
Another example of maintaining accessible features is the Village's enforcement of ordinances that affect access in the community. With snow removal the Village enforces a zoning ordinance that prohibits the piling of snow in accessible Reserved Parking Spaces for persons with disabilities. Such spaces are typically end row spaces that get piled high with plowed snow, making them inaccessible to passengers of vehicles requiring accessible parking.
This brings to mind another practice that the Village employs to maintain access. The Arlington Heights Police Department enforces Reserved Parking Spaces for persons with disabilities. More than 300 citations are written each year on violators. Such enforcement works to keep accessible parking spaces available for those who need the spaces the most, customers with disabilities.
Along with enforcement of vehicles illegally parked in Reserved Parking spaces the Village has kept abreast of changes in the Illinois Vehicle Code that recently increased the fine amount to $250. In response to this change the Village not only updated their own signage in municipal lots, but adopted an ordinance requiring private business to update their signage as well, to reflect the current fine amount of $250.
Thanks to the Coalition for Citizens with Disabilities in Illinois, an inexpensive decal was available for purchase ($5.00 each) to place over the existing fine sign. Code enforcement officers not only informed businesses of the new requirements through letters to each establishment but provided this resource to make compliance easy for them.
While this article touched primarily on maintenance of sidewalks and accessible parking spaces the subject of "maintenance of accessible features" is much broader. It covers everything from buildings and facilities to programs and activities and modes of communication. Anything that affects the use of the public domain and is accessible to the public must be maintained to be accessible to people with disabilities as well. Equal access is the goal and maintaining access is the charge to us all.
For questions on the ADA requirements to maintain accessible features please contact the DBTAC: Great Lakes ADA Center by calling (800) 949-4232 (V/TTY) or by visiting the Contact Us form.
In Focus Suggested Resources
ADA Best Practices Tool Kit for State and Local Governments
ADA Title II Technical Assistance Manual II-3.10000 Maintenance of accessible features.
Where a public entity must provide an accessible route, the route must remain accessible and not blocked by obstacles such as furniture, filing cabinets, or potted plants. An isolated instance of placement of an object on an accessible route, however, would not be a violation, if the object is promptly removed. Similarly, accessible doors must be unlocked when the public entity is open for business.
Mechanical failures in equipment such as elevators or automatic doors will occur from time to time. The obligation to ensure that facilities are readily accessible to and usable by individuals with disabilities would be violated, if repairs are not made promptly or if improper or inadequate maintenance causes repeated and persistent failures.
ILLUSTRATION 1:
ILLUSTRATION 2:
If the lift normally is functional and reasonable steps have been taken to repair the lift, then the school has not violated its obligations to maintain accessible features. On the other hand, if the lift frequently does not work and reasonable steps have not been taken to maintain the lift, then the school has violated the maintenance of accessible features requirement.
ILLUSTRATION 3:
ADA Title III Technical Assistance Manual III-3.7000 Maintenance of accessible features.
Where a public accommodation must provide an accessible route, the route must remain accessible and not blocked by obstacles such as furniture, filing cabinets, or potted plants. Similarly, accessible doors must be unlocked when the place of public accommodation is open for business.
ILLUSTRATION 1:
ILLUSTRATION 2:
ILLUSTRATION 3:
BUT: An isolated instance of placement of an object on an accessible route would not be a violation, if the object is promptly removed.
Although it is recognized that mechanical failures in equipment such as elevators or automatic doors will occur from time to time, the obligation to ensure that facilities are readily accessible to and usable by individuals with disabilities would be violated, if repairs are not made promptly or if improper or inadequate maintenance causes repeated and persistent failures. Inoperable or "out of service" equipment does not meet the requirements for providing access to a place of public accommodation.
ILLUSTRATION 1:
ILLUSTRATION 2:
The Docket
Snyder vs. Sullivan University, No. 3:06-cv-110-H, 2007
A Federal Judge granted summary judgment to Sullivan University, Louisville, KY in a case brought by a former employee. Ms. Snyder filed suit following her firing in 2005 alleging that the University had terminated her after she had a verbal altercation with a co-worker. The University contended that Snyder was fired for violating workplace policy regarding conduct. Snyder in her suit alleged that she was terminated because of her bipolar disorder in violation of the Americans with Disabilities Act (ADA) and the Kentucky Civil Rights Act.
The judge in his decision ruled that Snyder was not disabled in accordance with the definition under the ADA or the Kentucky law. The court ruled that she failed to show that she was substantially limited in the major life activity of caring for oneself and that her supervisor did not regard her as being disabled. The Judge also determined that Snyder had been properly terminated for violating workplace conduct rules.
The U.S. Supreme Court to Hear ADA Case
The U.S. Supreme Court announced that it will hear a case involving re-assignment as a reasonable accommodation under the Americans with Disabilities Act (ADA). The case between Pam Huber and Wal-Mart had been ruled in favor of the plaintiff by a lower court but reversed by the Court of Appeals for the 8th Circuit. Huber had requested re-assignment to a vacant position as a reasonable accommodation because she was no longer able to perform her current position. Wal-Mart instead gave the position to what it said was a more qualified employee and transferred Huber to another facility to a position that paid less than her current position or the position she was seeking.
The Equal Employment Opportunity Commission (EEOC) guidance on re-assignment states that the employee seeking a reasonable accommodation need only be qualified for the open position and not the most qualified for the position. The 8th Circuit decision is in conflict with other Circuit's rulings in this area and the reason why the Supreme Court is taking the case. Oral arguments will be heard in the spring of 2008.
From the ADA Expert
Question: Q. I have an employee that provides in-home nursing services to clients. He recently called in sick two days in a row. On the second day we were contacted by his daughter stating that her father had been hospitalized because of his bi-polar disorder and problems with the medications he had been taking. The daughter stated that her father had told her that his job duties had changed recently and he was struggling with this but his job duties haven't changed. The employee is expected to be at work his next scheduled day. Can we ask any medical questions when the employee returns?
Answer: The ADA prohibits covered employers from discriminating on the basis of disability against qualified individuals with disabilities in all employment practices. A covered employer is one with 15 or more full or part-time employees. An employer may hire, fire, or promote the most qualified individual he/she chooses. The ADA prohibits that covered employer from making the decision on whom to hire, fire, or promote on the basis of disability. There are limitations on when an employer can ask medical questions or require examinations.
The ADA states that a covered employer shall not require a medical examination and shall not make inquiries of an employee as to whether the employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
An employer can ask medical questions in situations like this if the information learned is reliable and if the employer has a reasonable belief that the employee's ability to perform essential job functions would be impaired by a medical condition. Also, if the employer has a reasonable belief that the employee would pose a direct threat due to a medical condition the employer may make disability-related inquiries or require a medical examination.
Factors that an employer might consider in assessing whether information learned from another person is sufficient to justify asking disability-related questions or requiring a medical examination of an employee include:
- The relationship of the person providing the information about the employee
- The seriousness of the medical condition at issue
- The possible motivation of the person providing the information;
- How the person learned the information (e.g., directly from the employee whose medical condition is in question or from someone else)
- Other evidence that the employer has that bears on the reliability of the information provided.
If you have questions about the ADA you may contact the DBTAC: Great Lakes ADA Center by calling 800-949-4232 (V/TTY) or by visiting the Contact form on the Center's web site.
Suggested Resource
Enforcement Guidance on Disability-Related Inquiries and Medical Examinations.
