This blog is about how people who have control over a building situation can achieve ada accommodations. So we are very heavy on focusing with the end result of what is a long process in construction and design.

We talk much about the requirements of the code, interpretations and the law for disabled access. But in the pursuit of cost effective reasonable accommodations, we shouldn’t lose sight of what disabled access is for. With the focus on cost, business doesn’t always make the best of what is world populated by humans with human need.

Quoting Mia on her latest blog: Cant rock the boat hell if we have to well sink it

Over the life of this blog ,it has been my intention to shine a light on any person or group who takes money or gets kudos for being advocates and angels for the disabled community but in reality are more the problem than the cure.

The reality of the code is that there are people who need those requirements. The requirements of the code here in the United States have been the result of years of study through the access-board, and represent the best cost-benefit analysis that government can offer between minimum cost and maximum benefit.

So while this entry isn’t so much about specific numbers here, I do want to remind you all, before we get back to our normal stream of access tips that the end result of any disabled compliance needs to be of benefit to the people who would use it. Another quote:

Another example, a internist who proclaims she is disabled friendly with full access and expert at all medical problems pertaining to life in a wheelchair, we arrive her doorways are too small for chairs her toilet door has a 14 inch step and she proclaims that I shouldn’t complain and be thankful for what ever i get? Folks it’s bad when doctors or advocates are taking government money or worse taking ours and they know nothing or even worse they don’t give a damn, but I have started to receive notes from parents telling me not to rock the boat, they’ll put up with second best the doctor is “really nice” he is incompetent but nice? If parents don’t stand and yell ”hell no” who will? The kid in the chair can’t stand at all, a baby with cerebal palsy can’t scream help. We cannot tolerate incompetence, were not fixing a car that can have the engine replaced, its our life, it’s the life of our children. If these so called experts don’t know a damn thing i dont care if they can put on puppet shows, let them do them for someone else but their not getting their incompetent hands on our most precious posessions our loved ones

Mia’s writings aren’t for everyone, as there’s plenty of strong emotion in there — and no wonder — considering how misunderstood disabled access is! We’ve heard the horror stories of individuals who go up and down streets suing businesses for disabled access — now while Mia and the millions of others like her (who are disabled and angry) don’t do this — only a handful do — you do begin to get a sense of where this frustration can lead to in the hands of a few explosive individuals.

If you want to understand more from her point of view, that of your average disabled patron, please take a look at her blog Disabled Access Denied. Otherwise, we will return to the regular accessibility tips in the next few days.

One of the complaints by various building officials, property managers and business owners who are, at times, angry for having to pay for or enforce laws that require facilities to be made have said to me:

• I never see that platform lift being used
• We never see those people come in here

Both of these complaints stem from a misunderstanding of both the real accommodations have for people who have disabilities and how many disabled individuals are out and about.

First some statistics. The answer? At least one in five. Don’t believe it? See this source, Access to Disability Data citing a very old source, from the early 1990s. Given that this year, of 2011, the first baby boomers have reached 65, AND The number of disabled veterans is rising especially as the United States has more than three military actions going on today, you can be sure that there are plenty of disabled citizens out today.

Now even if you provide accommodations that’s not enough to get people with disabilities into your establishment. I won’t talk about marketing or sales funnel, but installing a platform lift isn’t enough — it’s really possible that your external path of travel is so incompliant that the disabled can’t even get in the door. Plus a business that is known to be disabled unfriendly is likely to not get business from the disabled. A family taking grandma out to dinner isn’t going to take her to a restaurant that will embarrass her or cause her difficulty.

With this in mind, I want to draw attention to a recent connection we’ve made, a blog by one Mia G Vayner who runs a blog: “Disabled Access Denied“. With the advent of social media online and social networking, Vayner is one of the rising voices of a growing disgrunted and traditionally under-represented group of people.

I had invited Vayner to write herself an introduction, and it is presented below.

Disabled Access Denied was the message I got every time I rolled up to a restaurant that wasn’t accessible or a doctors office that had 10 steps up to its door or my favorite — when store owners used their existing disabled ramps as prime retail space.

My name is Mia G. Vayner and I’ve never been known for taking these types of injustices quietly. My friends will tell you I have always had a disability: a quick wit, a sharp mind and a total inability to handle stupidity. If you’re asking about the wheels under my ass, its a hereditary neurological disorder that is degenerative and makes walking and standing with any regularity impossible. This has been my life for about 5 years. When you mix my friends opinion of me with the ever growing lack of care and concern by those in power for the rights of the wheelchair bound my choices became scream or do something about it. The first meant I need to put a lawyer on retainer and the second involved starting a blog. That is how www.disabledaccessdenied.com was born.

My blog serving notice to those who say through their laws, their lack of adherance to laws, their complete disregard or simple lack of thought for the disabled, we’ll photograph, we’ll blog and we’ll tell the powers that be that until they make it right, until they Respect our Existance, they can Expect our Resistance.

Now our business blog here at YTA’s main focus is to you business owners and contractors — so between Vayner and ourselves, we address different audiences. Plus, we are located in Los Angeles — Disabled Access Denied has strong roots in New York City. So there are some differences in where we are coming from.

Nonetheless, I think it a good opportunity for many of you to take a look at Disabled Access Denied and understand where your direct customers and end-users of construction come from — what their interests are and how strongly inaccessible construction impacts their ability to just get from point A to point B.

Often times too, our focus is on the letter of the code, and as a result there is opportunity to forget what the end result should be. Here at YTA we don’t just want to help you provide legally compliant paths of travel and access to goods of services but also to provide good and safe customer experience so that people with disabilities can enjoy the same benefits and integration as their non-disabled peers.

So please take a look at the wealth of articles and information, and think about how your customer experience — especially those who are of different ability — are impacted by your customer experience. A good starting place is to sit in a wheelchair and try to get in the door, and use your restroom.

Contact information for Vayner can be gotten at Contact info or you can email her at disabledacessdenied@Gmail.com or follow her on her twitter at Disableddenied.

As always if you have specific questions about accessibility at your site you can contact us at 866 982 3212 or help@ytaccess.com

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

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

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

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

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

Found here:

Final Ruling on the ADA with the 2008 Amendments

A summary of the legal principles can be gleamed here:

Federal Definition of Disability

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

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

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

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

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

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

2. What is the purpose of the ADAAA?

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

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

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

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

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

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

4. Who is required to comply with these regulations?

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

5. How does the ADAAA define “disability?”

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

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

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

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

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

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

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

8. What are “major life activities?”

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

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

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

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

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

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

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

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

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

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

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

12. What are mitigating measures?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

23. Is pregnancy a disability under the ADAAA?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Further contact information for the EEOC can be obtained below.

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

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

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

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

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

In the past, I’ve tried to take a factual stance on accessibility. No preaching, just the facts. But facts don’t always say much — facts change. They come and go. For this to be a successful business blog, it needs to reach out and take a stand. This company needs to present its philosophy, so that the general reader, potential client or not, understand why we do what we do — which is in a significant sense — even more important than what we do… as why we do something shapes everything about what we do.

If you are reading this I assume you know something about what YTA does. From the point of view of businesses, we are consultants who help businesses lower their liability by making rational accessibility tips. From the point of view of people who are disabled, we help make the world more accessible, but in a way that is nice. For activists, this may be too nice. In the most extreme position of activists, we are not helpful at all — we should be threatening to sue places that violate accessibility guidelines — and then actually suing the places to force them to comply with the law.

At the most basic level, this is what accessibility compliance entails. Compliance with the law. We have had some clients tell us “we don’t want people like that around here” and “i don’t believe that new ramp would ever get used” (as if disabled people do not exist). Both are appalling to hear and thank goodness, not many people say it. Whatever level of engagement you are willing to do for your clients, accessibility is still required by law.

How this happens can be complicated. Basically the ADA defines a disability a condition which “substantially limits a major life activity.” You can read more about what exactly a disability is here:

http://www.access-board.gov/about/laws/ada-amendments.htm

Now that you’ve read the link, regardless of what major life activity has been substantially limited, individuals with a limiting condition must be able to gain access to goods and services in the same way as the general public. This can extend to having assisted listening devices, to having grab bars in the restroom, or having door ways widened so a wheelchair can fit through them. Likewise, having architectural or structural barriers which trap people, or prevents people from getting what everyone else can get (such as a soda fountain switch that is too high up) would qualify as a violation of the ADA. Think of the difference between ketchup packets and having a push button on a ketchup-condiment dispenser.

The few items I have mentioned are simple. Much of what business owners would make of these depends on their attitude. Many business owners are scared away from compliance because they are afraid of expensive changes like tearing down structural, load bearing walls. Or putting in expensive ramps. Or completely changing the way the parking layout is and not having any site parking for a week. So these become “justifications” that serve to downplay the relevance of ADA compliance work. Having this kind of work isn’t often the case, but it could be. The flip side is that business owners may need to change many inexpensive things. Such as changing the door handles on doors that access public spaces and doors that serve as pathways of egress and ingress. Or lowering a counter that is made of wood. Or lowering or raising a sink in one restroom. These business owners might bitterly complain that the ADA is ‘nit-picky’. Again that depends on your attitude. Both positions are on opposite sides regarding the monetary commitment involved in ADA compliance — yet both sides assume their position as reasonable to justify the dismissal of ADA compliance!

Now, not all business owners we’ve spoken with have this attitude. Nonetheless, this little dialectic suggests that downplaying the importance of ADA compliance is unrelated to either position. Having any excuse to toss aside the ADA is a pathological attitude. After all, is it nit-picky to ensure that your customers have a good experience, or an experience that is safe for them? Is it nit-picky to consider the wide range of ability, age, and condition of every person whose money is green?

This gets us to the baseline of businesses. All businesses need to have positive cash flow in order to be a viable. We understand that. The ADA does make some allowances on what is ‘readily achievable’. The basic idea is that small entities that can’t afford costly renovations. What is the determining factor of what is costly depends on a great many things. Larger corporations, of course, will have a higher threshold of what is allowable. Yet if each business saved a dollar a day, since the ADA became law, that would mean today, each business in operating since the signing of the ADA would have $7,497.00!!

This emphasis on money seems to exemplify a basic attitude about the world we live in. This recent story on NPR, Is Marriage Rational comes to the conclusion that marriage is in fact not rational because it makes little economic sense. Personally I find it a sad affair that money has to be the determining factor as to the viability of anything. After all, why be a doctor or an attorney, if you’re after money? All that schooling… and that huge debt… Yet even this impetus on money isn’t enough to spur business owners and property managers to take steps to become compliant. Fines in California are 4k minimum per violation. That’s enough dough that it’d make you’d think that even medium sized businesses would comply. Add on the cost of a attorney fees and yet even this dollar amount does not seem enough to encourage action!!

It seems that even with the letter of the law — found in Civil Code Section 51 stating that violations of the ADA are acts of discrimination, bearing fines of at least 4k per instance — is not enough for business owners to make sense of what they should do.  This suggests that saving money and limiting liability isn’t what business owners think as being important enough to initiate action on their part.

Should businesses wait for a lawsuit to happen? Because then they have to pay 4k plus attorneys fees. Or should they spend some money, hire a consultant who is familiar with the intricacies of these requirements and then pay the few thousand (or in some cases few hundred) it would take to comply and then completely avoid that lawsuit? It’s not like they have to do this all at once either! The cost can be spread out over time. Courts do look favorably to businesses that have an operative ADA transition plan in place.

If anything, it seems that we as a people have forgotten what it means to be in business or even live among our peers. Success doesn’t come about by simply behaving according to a set of rigid rules. If that was the case, you’d think anyone could be wildly successful. Robots and computers cannot succeed at business. Success comes about like love. It’s a side-effect of successful relationships. Successful relationships take time, take energy and take good-will. Any business owner who would begrudge someone’s grandmother entrance to their facility does not have good will. Instead we often encounter the contentious attitude of us vs them. “We need to get them.” or “they will get us.” This is much like the attitude of the stereotypical “bad renter” who trashes the apartment they rent because it’s not theirs. Even if they don’t own the apartment they still live there!! Who wants to live among all their own filth and garbage?

My point: improving accessibility (even if its just to your store) benefits not only the general but the public but also your potential customers.  It will come back to you.  We all live together in the same city, on the same streets. Just like littering is bad for the community (and thus bad for us individually) so is polluting the environment or not voting and taking the time to learn about what’s important to be able to vote. Fiscal conservatives complain that deficient spending means that our children need to pay for our mistakes. I realize it’s getting to be increasingly difficult to feel a sense of community, especially in big cities like Los Angeles or Chicago where people can be very impersonal. We don’t need to adopt the rat in a cage syndrome though, we are human beings. We have a choice. We need people to be responsible, not just for themselves but others. After all, business owners are leaders in their communities. Business owners employ people. Successful business owners ensure their customers have good experiences and that their employees — the life blood of their business — succeed at their individual lives. This is success behind Zappos. This is also what’s missing in larger corporations that burn people out.

Accessibility is one of those indirect benefits. At the very minimum, it requires following the law. That’s important too — not knowing the law is no excuse. Ever tell a cop who pulled you over that you don’t deserve a speeding ticket because you didn’t know the speed limit? But as citizens in the great country of the United States of America, we need to see the reasons behind laws. The principles behind why laws are there. Thats what it means to be a “pillar of the community” someone who not only opens a restaurant to make a living but also to spread the joy of eating at a particular kind of establishment. Businesses serve the public — they serve the needs of the general population. That’s why anyone would go to a business. This is what’s great about capitalism — not greed — but that we can help each other out and get to make a living doing it. Vote with our dollars, as it were. That is also why we exist as a service, to help you achieve accessibility!

After all, in ten or twenty years, improving accessibility everywhere will also benefit your loved ones. And if you and I live long enough, having an accessible world will also directly benefit us.

For a guide on how to put a price tag on ADA Compliance

Aaron “Wheelz” Fotheringham is an 18-year-old wheelchair athlete from Las Vegas, Nevada. In the following video, watch as he triumphantly lands the first ever double backflip in a wheelchair (after enduring some painful failed attempts).

(See Video…)

Alot of what we talk about here revolves around the ADA being a potential tool for certain individuals to hurt businesses. While that may be true, it must not be forgotten that the ADA does much good and helps many people who would otherwise have a worse quality of life. In this way, at least for business owners, being accessible (especially if you’re the only one in town) is GREAT for business.

Hi. I’m Walking Bob and one of the joys of this blog is being able to highlight the people, places and events that make Davis a special place to live. I experienced one of those events, along with about 125 other people, at the July 31 Disability Pride Parade in Central Park, celebrating twenty years of the Americans with Disability Act.

Read more on Disability Pride Parade in Davis, CA

We must also not forget about the challenges which face many of our peers. We may assume in our everyday life that ‘we don’t see people like that’ or ‘people like that never come here’ but ask yourself, do you not see them because they do not exist? Or do you not see them because it’s hard for them to get around so many of them don’t brave the sunlight and the structural, attitudian and architectural barriers which lie around them?

You see, Richard was born without arms or legs. But he never allowed this disability to limit him. From the age of two, when he first began turning pages in books on his own, his commitment to independence has driven his personal and professional life.

Richard’s daily routine isn’t all that different from mine or yours. A video produced during his time at the California Department of Rehabilitation shows how he lives on his own, gets to work, and exercises regularly:

A day in the life of Richard Devylder

A related article, too. The Department of Transportation celebrates 20 years of the ADA.

His comment reveals something profound about the way we view disabilities in this country: Disability is seen as a private matter, a personal problem that a disabled individual struggles to negotiate in a world of “normal” people, rather than a social or political issue.

From a very young age, Adam intuited that it would be better for him to obscure his ailment than report it, risking the marginalization that might result. Hiding it until he physically couldn’t seemed the best way to protect his normality.

As he grew and became a man, fully capable of expressing himself in the world, his resolve to keep quiet was only strengthened. Though his physical symptoms had been manifesting for years, they became a “condition” only when others were aware of them, at which point he began to get a complex emotional bundle of pity, sympathy and fear from friends and family.

(Read more on the becoming-public of the ADA)

You can also catch more about what the nature of what it means to have a disability and the notion of “non-disabled” is actually a kind of subset of “disabled”. This term has less to do with interpreting the statement as a prediction that every abled bodied individual will someday become disabled but more

to offer a more inclusive expression that recognizes the diverse spectrum of disabilities, allowing individuals who are able-bodied to identify with the reality that disability affects us all. The term forces able-bodied people to put aside our own fears of becoming disabled, and focus on that which unites rather than separates us as people with a range of experiences and aspirations who face innumerable challenges.

You can read more about temporarily abled bodied here.