Americans with Disabilities Act
Questions and Answers
Barriers to employment, transportation, public accommodations, public
services, and telecommunications have imposed staggering economic and
social costs on American society and have undermined our
well-intentioned efforts to educate, rehabilitate, and employ
individuals with disabilities. By breaking down these barriers, the
Americans with Disabilities Act (ADA) will enable society to benefit
from the skills and talents of individuals with disabilities, will allow
us all to gain from their increased purchasing power and ability to use
it, and will lead to fuller, more productive lives for all Americans.
The Americans with Disabilities Act gives civil rights protections to
individuals with disabilities similar to those provided to individuals
on the basis of race, color, sex, national origin, age, and religion. It
guarantees equal opportunity for individuals with disabilities in public
accommodations, employment, transportation, State and local government
services, and telecommunications.
Fair, swift, and effective enforcement of this landmark civil rights
legislation is a high priority of the Federal Government. This booklet
is designed to provide answers to some of the most often asked questions
about the ADA.
For answers to additional questions, call the ADA Information Line
800-514-0301 (voice) 800-514-0383 (TDD)
Additional ADA resources are listed in the Resources section of this
document, page 30.
July 1996
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, nonchronic 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 fitness 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 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 employers 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 job's 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 þ
i.e., a significant risk of substantial harm þ 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 workers 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 employers
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
196, 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.
Information about the tax credit and the tax deduction can be
obtained from a local IRS office, or by contacting the Office of
Chief Counsel, Internal Revenue Service.
Tax credits are available under the Targeted Jobs Tax Credit
Program (TJTCP) for employers who hire individuals with
disabilities referred by State or local vocational rehabilitation
agencies, State Commissions on the Blind, or the U.S. Department of
Veterans Affairs, and certified by a State Employment Service.
Under the TJTCP, a tax credit may be taken for up to 40 percent of
the first $6,000 of first-year wages of a new employee with a
disability. This program must be reauthorized each year by
Congress. Further information about the TJTCP can be obtained from
the State Employment Services or from State Governors Committees on
the Employment of People with Disabilities.
Q. What are an employers 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.
For information on how to contact the Equal Employment Opportunity
Commission, see page 30.
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 IIs
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 IIs 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 IIs 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 drivers 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 $50,000 for a first violation or
$100,000 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 30.
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.
Telephone Numbers for ADA Information
This list contains the telephone numbers of Federal agencies that
are responsible for providing information to the public about the
Americans with Disabilities Act and organizations that have been
funded by the Federal government to provide information through
staffed information centers.
The agencies and organizations listed are sources for obtaining
information about the law's requirements and informal guidance in
understanding and complying with the ADA.
ADA Information Line U.S. Department of Justice
For ADA documents 800-514-0301 (voice) and questions
800-514-0383 (TDD)
Equal Employment Opportunity Commission
For ADA documents 800-669-3362 (voice)
800-800-3302 (TDD)
For ADA questions 800-669-4000 (voice)
800-669-6820 (TDD)
U.S. Department of Transportation
ADA documents and information 202-366-1656 (voice)
202-366-4567 (TDD)
ADA legal questions 202-366-1936 (voice)
TDD: use relay service
Federal Communications Commission 202-418-0190 (voice)
202-418-2555 (TDD)
Architectural and Transportation 800-872-2253 (voice)
Barriers Compliance Board 800-993-2822 (TDD)
Job Accommodation Network 800-526-7234 (voice)
800-526-7234 (TDD)
President's Committee on Employment 202-376-6200 (voice)
of People with Disabilities 202-376-6205 (TDD)
U.S. Department of Education Regional Disability and Business Technical
Assistance Centers
Call automatically connects to 800-949-4232 (voice)
your regional center 800-949-4232 (TDD)
Addresses for ADA Information
U.S. Department of Justice
Civil Rights Division
Disability Rights
Section P.O. Box 66738
Washington, DC 20035-6738
U.S. Equal Employment Opportunity Commission
1801 L Street, NW
Washington, DC 20507
U.S. Department of Transportation
Federal Transit Administration
400 Seventh Street, SW
Washington, DC 20590
Architectural and Transportation Barriers
Compliance Board
1331 F Street, NW Suite 1000
Washington, DC 20004-1111
Federal Communications Commission
1919 M Street, NW
Washington, DC 20554
This document is available in the following alternate formats:
- Braille
- Large print - Audiocassette
- Electronic file on computer disk and
electronic bulletin board (202) 514-6193.
Note: Reproduction of this document is encouraged.
Get the Savvy Consumer Newsletter! (FREE)