30 years later, ADA plays important role in municipal employment, public services

By KATE COIL
TML Communications Specialist

Nearly 30 years after it was signed into law, there are often still questions and concerns surrounding compliance with the Americans with Disabilities Act (ADA).
Signed into law in 1990, the ADA seeks to prohibit discrimination based on ability. An amended version of the ADA was signed into law in 2009 with updated definitions and protections.
There are numerous ways in which municipalities must comply with ADA ranging from making public transportation and sidewalks accessible to providing alternative forms of communication at city hall and public meetings to municipal hiring processes to any federally-funded programs. Those who are discriminated against can seek financial, legal, and injunctive relief against municipalities.
For many municipalities, ADA issues can be divided into two major categories: being compliant as an employer and being compliant as a provider of government services.

ADA AND EMPLOYMENT
Richard Stokes, human resources consultant with MTAS, said that while many feel there is no discrimination against the disabled in their community, there is evidence to the contrary. The amount of complaints filed related to disability issues with the state’s Equal Employment Opportunity Commission (EEOC) have been on the rise.
Title I of the ADA states that “employers are prohibited from discriminating against otherwise qualified individuals with a disability who can perform the essential functions of the job with or without an accommodation.” Stokes said this extends to hiring or discharging employees as well as how employees are paid and trained.
“The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more life activity or that person has a record of such an impairment,” Stokes said. “If a person has been treated for a disability or impairment, they then have a record of that disability or impairment and are covered under the act. People with cosmetic disfiguration like scars or burns and those who are missing limbs may be able to go about their lives just fine, but we treat them differently. Because we treat them differently, they are regarded as being impaired and are protected under the law.”
Stokes said that having a written description of a job can be one way to legally define what a job’s “essential functions” are.
“If a person spends 80 percent of their time doing a task that is an essential function of the job,” he said. “Have in the written job descriptions what the essential functions of the job are. If the Department of Labor comes to you with a complaint, the first thing they will ask for is the description of the job.”
If the essential function of a job has to be eliminated for a person to accept the position, it is not considered a reasonable accommodation. An employee who is disabled should also be expected to produce the same quality and quantity of work as one who is not.
There are three major types of accommodations. The first is adjustments to the job application process that allows individuals to apply. The second is a modification or adjustment to a work environment or the manner or circumstance in which the position is held. The final accommodation is an adjustment that would enable an employee with a disability to enjoy all the benefits other employees enjoy.
Making a job accessible begins from the moment of advertising the job. A person can request an accommodation at any time during the process from the time they apply to the job until after they have accepted a position.
“Individuals have to be able to read the notices, access and apply for the job,” Stokes said. If a person in a wheelchair wants to apply for a job, can they even get in the building? You have to ask if the place where the interviews are being held are accessible. You have to think about how a visually impaired person can read the job posting or do any testing for a position.”
Stokes said there is often confusion when it comes to making proper accommodations within ADA guidelines. Statistics show that 35 percent of accommodations made to a workplace cost nothing while 88 percent of accommodations cost less than $1,000.
“It concerns me when I’m working with a city and I bring up accommodation and the first thing they say is ‘we don’t have any extra jobs’ or ‘we don’t want to create any new positions,” Stokes said. “ADA does not require that you create a new job for a disabled person, but you may need to change something about the workplace or about how the job is customarily done. They may only need to make modifications to what they are already doing.”
Making a “reasonable accommodation” for a job can be anything from providing a teleprinter or TTY device for someone who is hard of hearing, allowing someone with lupus or a similar condition to sit in a chair rather than standing on their feet all day, or making a desk easier for a wheelchair user to access.
Other employees like managers and supervisors also need to be trained in how to handle requests for accommodations. Sometimes, Stokes said, employers don’t always realize when a request has been made for an accommodation. Requests do not have to be made in writing, though employers can ask for a written explanation of what accommodation an employee needs.
Likewise, an employer can ask for medical information about anything specifically related to the accommodation, but employees are not required to give this information. Any medical information that is submitted must be kept confidential.
“What is critical is you conduct an interactive process and document that process,” Stokes said. “Otherwise, you can’t prove you did it. It is also critical that this interactive process is done as quickly as possible but also protects medical information. An individual can request an accommodation, and a spouse or family member can request an accommodation. If an employee’s spouse calls you and says they’ve been in a car accident, you have just been put on notice. When a doctor releases an employee to do ‘light labor,’ that is a notice of accommodation. An employee can also say they don’t want an accommodation.”

ADA AS GOVERNMENT
SERVICE
In addition to following ADA guidelines as employers, municipalities must also follow guidelines as they relate to public services. Elisha Hodge, legal consultant with MTAS, said services ranging from police and fire to parks and rec, animal control, codes, and sanitation must accommodate residents with disabilities.
“We have to ensure that an individual who has a disability is also available to participate in any program or service just like those who do not have a disability,” Hodge said. “Title II requires the government to provide effective communication for government services. Not only do people have to be able to receive information from cities; they have to be able to provide information to cities. That might be through the use of auxiliary aids. It might mean at a meeting you need an interpreter or that your minutes are read aloud or put in large print or braille. Cities can use alternative aids if they can prove that the alternative is as effective as the aid requested, if it is a financial burden, or if it will disturb services being provided.”
When providing information about city services or ADA compliance, Hodge said it is important to make sure the target audience actually has access to these notices.
“All entities are required to provide a notice to anyone who might be interested of what their rights are and a city’s responsibilities under ADA,” Hodge said. “You also need to think about where and how your notice will be provided. For entities with 50 or more employees, in addition to this, you have to list who your ADA coordinator is. Cities with more than 50 employees are also required to have a grievance procedure put in place for those who wish to make compliant.”
By December 2019, all cities with more than 50 employees are also required to have a transition plan. This plan is a self-evaluation process looking at facilities, programs, and services to ensure they are up to ADA standards.
Any building that is constructed or altered after Jan. 26, 1992, must be readily accessible to persons with disabilities. This doesn’t always mean that new construction is required. Moving an office to an accessible floor or having employees come to meet with disabled visitors can solve the issue.
“There is a safe harbor in the ADA that says that if facilities, programs, or services are compliant with the 1991 standards, that is fine until you make new alterations to that building,” Hodge said. “However, the 1991 standards did not cover a variety of programs and services that cities offer. Those include swimming pools, play areas, exercise machines or equipment, sports facilities, and boating and fishing piers. All of those facilities have to meet 2010 ADA standards.”
Many questions have come to the forefront lately about service and emotional support animals. While service animals are protected under ADA, the only two type of service animals recognized under Title II are dogs and ponies. Hodge said emotional support animals are not covered under Title II, but that there are separate restrictions for public transportation and accommodation.
“There are two questions you can ask someone with a service animal,” she said. “You can ask the individual is that animal required because of your disability, and you can ask what task the animal has been trained to perform. You cannot ask any other questions. You cannot ask for documentation of the training of the animal. You cannot ask further questions about the disability.”
However, service animals must be under the control of the individual they serve.
“An individual must be able to control the animal before bringing it into a public setting,” she said. “A person does not have to have the animal on a leash if that precludes the animal from performing their duties or if the person is not able to hold onto that leash. You can ask them to remove the animal if they cannot control it via a tether, voice or other commands or if the animal is not housebroken.”
For more information about ADA compliance, visit www.mtas.tennessee.edu.