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According to the Survey of Income and Program Participation (SIPP) data, approximately 54 million Americans have a disability.

The ADA is divided into five sections called “titles.” Each title covers a different area. Title I covers employment. Title II covers state and local government programs. Title III covers places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that cover things like retaliation and attorney fees.

Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. After the ADA was originally passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. Whether a person had a disability in order to sue became the focus of most disputes under the ADA. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition.

So the ADAAA was passed in 2008 and essentially overturned those Supreme Court cases that narrowed the definition of disability. Congress made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed in 1990.

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed.

The ADA is a comprehensive civil rights law. It prohibits discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications.

Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

“Regarded as” means that the person either:

  • Has an impairment that does not substantially limit a major life activity;
  • Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
  • Does not have any impairment, but is treated by an entity as having an impairment.

I’ll give you the “lawyer answer” – it depends. All people who meet the ADA definition of disability are covered by the ADA in general, but they still may not have rights under particular sections of the ADA. For example, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and is not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by other parts of the ADA.

The Department of Justice (DOJ) issued newly revised ADA regulations which began taking effect in March, 2011 and impacted entities covered by Title II and Title III. March 15, 2012 marked the compliance date for provisions governing the 2010 ADA Standards for new construction, alterations, program accessibility, and barrier removal.

On or after March 15th, 2012 all newly constructed or altered facilities must comply with the requirements in the 2010 Standards. If elements in existing facilities already comply with the 1991 Standards and are not being altered, entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

For title II entities, if the start date for construction is on or after March 15, 2012, all newly constructed or altered State and local government facilities must comply with the 2010 ADA Standards.

For businesses that are covered under title III, the compliance date for the 2010 ADA Standards for new construction and alterations is determined by:

  • the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government;
  • the date the last application for a building permit or permit extension is received by a State, county, or local government, where the government does not certify the completion of applications; or 
  • the start date of physical construction or alteration, if no permit is required. 

If that date is on or after March 15, 2012, then new construction and alterations must comply with the 2010 ADA Standards

Further information can be found in the U.S. Department of Justice publication “Effective Date – Compliance Date” at http://www.ada.gov/revised_effective_dates-2010.htm.

In a situation where the requirements of both a state or local building code and the 2010 ADA Standards need to be simultaneously considered, the code or Standard which results in greater accessibility takes precedence.  This interpretation is based on the concept of “equivalent facilitation” from section 103 of the 2010 ADA Standards which states that alternative standards for the use of designs, products, or technologies can be used as long as they result in substantially equivalent or greater accessibility and usability.  Thus, a state or local code can be used if it contains a requirement that provides a different but greater level of accessibility than the 2010 ADA Standards. 

If the use of a state or local code instead of the 2010 ADA Standard is challenged, the covered entity is responsible for defending the use of this code.  The ADA accessibility requirements do not supplant or replace State or local laws that impose higher accessibility standards. The governing principal to follow when Federal, State, or local codes differ is that the more stringent requirement applies.

The ADA does not have a provision to "grandfather" a facility but it does have a provision called “safe harbor” in the revised ADA regulations for businesses and state and local governments. A "safe harbor" means that you do not have to make modifications to elements in an existing building that comply with the 1991 Standards, even if the new 2010 Standards have different requirements for them. This provision is applied on an element-by-element basis.  However, if you choose to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies so the altered elements must comply with the 2010 ADA Standards.

A “safe harbor” does not apply to elements that were NOT addressed in the original 1991 Standards but ARE addressed in the 2010 ADA Standards. These elements include recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys. On or after March 15, 2012, public accommodations must remove architectural barriers to these elements listed above are subject to the new requirements in the 2010 Standards when it is readily achievable to do so.

There are two types of accessible guest rooms, one type having “mobility features” and the other “communication features.”   The minimum number of accessible guest rooms in newly constructed facilities is provided in Tables 224.2 (mobility features) and 224.4 (communication features) of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.  Note that for rooms with mobility features, roll-in showers will be required where the total number of guest rooms provided exceeds 50. 

In alterations and additions, the minimum required number of accessible guest rooms required is based on the total number of guest rooms being altered or added instead of the total number of guest rooms provided in a facility. Note, that where guest rooms are altered, or added, the technical requirements stated in the 2010 ADA Standards apply only to those guest rooms being altered or added until the total number of accessible guest rooms in the entire hotel complies with the minimum number required for new construction as stated in the tables referred to above.

Accessible guest rooms must be dispersed among the various classes of guest rooms, and provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. Typically, each alteration of a facility is limited to a particular portion of the facility. As accessible guest rooms are added as a result of subsequent alterations, the required degree of dispersion is more likely to be achieved if all of the accessible guest rooms are not provided in the same portion of the facility. 

Source: Section 224.1.1, and accompanying Advisory, of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.

The 2010 ADA Standards for Accessible Design can be found at: http://www.ada.gov/2010ADAstandards_index.htm

The Department of Justice’s ADA web site, www.ada.gov, contains a number of useful documents on accessibility for businesses and state and local governments. For example, for businesses see “ADA Update: A Primer for Small Business” and the section on “Making the Built Environment More Accessible” at: http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm.   

The U.S. Access Board also produces a number of documents on a wide range of accessibility-related topics which can be found at: www.access-board.gov.  For example, check “Guide to Updated ADA Standards” at: http://web.archive.org/web/20130721160340/http://access-board.gov//ada/guide.htm

Effective March 15, 2012, the applicable standards for new construction and alterations for either a public entity under Title II or a place of public accommodation under Title III are the 2010 ADA Standards for Accessible Design.   The 2010 ADA Standards can be found at: http://www.ada.gov/2010ADAstandards_index.htm

No, as of March 15, 2012, the applicable standards for alterations and additions are the 2010 ADA Standards for Accessible Design.   The 2010 ADA Standards can be found at: http://www.ada.gov/2010ADAstandards_index.htm.  

It is important to remember that the 1991 Standards are still relevant after March 15, 2012. Elements not altered after March 15, 2012 that comply with the requirements for those elements in the 1991 Standards, do not need to be modified, even if the new standards have different requirements for these elements.  This provision is called “Safe Harbor.”  However, if your business chooses to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies to the altered elements which must now comply with the 2010 ADA Standards.

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.

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.

Places of public accommodations and commercial facilities should use the 2010 ADA Standards for Accessible Design for readily achievable barrier removal, new construction and alterations. 

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.

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.

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.

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 or practice" of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.

Appropriate auxiliary aids and services may include services and devices such as qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; Appropriate auxiliary aids and services for individuals who are blind or have low vision may include services and devices such as qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.

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.

A wheelchair is a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor, locomotion.  Individuals with mobility disabilities must be permitted to use wheelchairs and manually powered mobility aids, i.e., walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities, in any areas open to pedestrian traffic.

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.

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. The 2010 ADA Standards for Accessible Design set minimum requirements – both scoping and technical -- for newly designed and constructed or altered public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities.

Business (63)

The ADA is a comprehensive civil rights law. It prohibits discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications.

It is important to remember that in the context of the ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

“Regarded as” means that the person either:

  • Has an impairment that does not substantially limit a major life activity;
  • Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
  • Does not have any impairment, but is treated by an entity as having an impairment.

Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

I’ll give you the “lawyer answer” – it depends. All people who meet the ADA definition of disability are covered by the ADA in general, but they still may not have rights under particular sections of the ADA. For example, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and is not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by other parts of the ADA.

Yes, the ADA definition of disability includes mental, as well as physical, impairments.

The ADA is divided into five sections called “titles.” Each title covers a different area. Title I covers employment. Title II covers state and local government programs. Title III covers places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that cover things like retaliation and attorney fees.

According to the Survey of Income and Program Participation (SIPP) data, approximately 54 million Americans have a disability.

Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. After the ADA was originally passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. Whether a person had a disability in order to sue became the focus of most disputes under the ADA. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition.

So the ADAAA was passed in 2008 and essentially overturned those Supreme Court cases that narrowed the definition of disability. Congress made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed in 1990.

“Readily achievable” means "easily accomplished without much difficulty or expense." The obligation for barrier removal is ongoing, which means a business must continue to evaluate existing barriers to determine if the barrier removal is readily achievable. In order to identify barriers in a facility, a business or non-profit should conduct an accessibility evaluation.

Determining what is “readily achievable” is made by each business on a case-by-case-basis based on the size and resources of the business. First, facilities should be assessed to determine what architectural barriers exist. Second, the costs of barrier removal should be documented and barrier removal priorities and timelines established. Third, this information can be used to create a "barrier removal plan."  For more information on barrier removal for small businesses, go to: http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm.

Further technical assistance is available through the ADA National Network at 1-800-949-4232.

Businesses doing alterations to improve accessibility are eligible for two federal tax incentives.  The Disabled Access Credit (Internal Revenue Code, Section 44) is available to help small businesses cover ADA-related eligible access expenditures. A small business is one that had either revenues of $1,000,000 or less or 30 or fewer full-time workers in the previous tax year. The credit can be taken to: (1) remove barriers that prevent a business from being accessible to or usable by individuals with disabilities; (2) provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals; (3) provide qualified readers, taped texts, and other methods of making visual materials available to individuals with visual impairments; and (4) acquire or modify equipment or devices for individuals with disabilities. The credit cannot be taken for the costs of new construction or planned alterations/renovations. The amount of the tax credit is equal to 50% of the eligible access expenditures in a year, up to a maximum expenditure of $10,250. There is no credit for the first $250 of expenditures. The maximum tax credit is $5,000.

A business of any size can take a tax deduction under Internal Revenue Code - Section 190 for the costs of removing architectural or transportation barriers. Businesses can also take a business expense deduction of up to $15,000 per year for costs of removing barriers in facilities or vehicles. These two incentives can be used together by eligible businesses if the expenditures qualify.

Technical guidance is available through the ADA National Network at 1-800-949-4232.

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed.

No. You cannot ask or require an individual with a disability to pay maintenance or cleaning fees, even if people with pets are required to pay these fees.  Service animals are not pets.  If you normally charge individuals for the damage they cause, you may charge an individual with a disability for damages caused by his or her service animal.  Service animals must be housebroken and under the control of the owner at all times. 

The ADA does not have a provision to "grandfather" a facility but it does have a provision called “safe harbor” in the revised ADA regulations for businesses and state and local governments. A "safe harbor" means that you do not have to make modifications to elements in an existing building that comply with the 1991 Standards, even if the new 2010 Standards have different requirements for them. This provision is applied on an element-by-element basis.  However, if you choose to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies so the altered elements must comply with the 2010 ADA Standards.

A “safe harbor” does not apply to elements that were NOT addressed in the original 1991 Standards but ARE addressed in the 2010 ADA Standards. These elements include recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys. On or after March 15, 2012, public accommodations must remove architectural barriers to these elements listed above are subject to the new requirements in the 2010 Standards when it is readily achievable to do so.

Yes, this is a violation of the ADA. Taxicab companies may not refuse to provide services to individuals with disabilities. Private taxicab companies are also prohibited from charging higher fares or fees for transporting individuals with disabilities and their service animals than they charge to other persons for the same service.  The owner must have the service animal under control and the animal must be housebroken.

A person traveling with a service animal:

  • cannot be denied access to transportation, even if there is a “no pets” policy
  • cannot be forced to sit in a particular spot
  • does not have to provide advance notice that he or she will be traveling with a service animal 

These laws apply to both public and private transportation providers and include subways, fixed route buses, paratransit, rail and light rail, taxicabs, shuttles and limousine services.

 

Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, the regulations implementing the ADA Amendments Act of 2008 provide the ‘nine rules of construction’ to help determine what impairments constitute a disability. By applying those rules, the regulations state there will be some impairments that virtually always constitute a disability. The regulations also provide a list of examples of impairments that should easily be concluded to be disabilities.  Included in this list of examples are deafness, intellectual disability, autism, epilepsy, diabetes, cancer, HIV infection, multiple sclerosis, muscular dystrophy, cerebral palsy, mobility impairments requiring the use of a wheelchair, post-traumatic stress disorder, major depressive disorder, schizophrenia and bipolar disorder.

Sources: EEOC Final Rule Implementing the ADA Amendments Act of 2008 and Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA.   Links to these documents can be found at: http://www.eeoc.gov/laws/regulations/index.cfm.

No. The care or supervision of a service animal is solely the responsibility of the owner. You are not required to provide care or food or a special location for the animal. 

You may ask an individual with a disability to remove a service animal from the premises (facility) if the animal is not housebroken or if the animal is out of control and the individual does not take effective action to control it.  Unwarranted and unprovoked violent behavior, such as uncontrolled barking, growling at other customers, jumping on other people, or running away from the owner are examples of unacceptable behavior.

The owner must use a harness, leash or other tether with his or her service animal unless the individual is unable to do so because of a disability or the use of these would make it difficult or unsafe for the service animal to perform tasks.  When a harness, leash or other tether are not being used, the service animal must be under the owner’s control through voice control, signals, or other effective means. 

If a service animal is removed from the premises, the individual with a disability must still be offered the opportunity to obtain goods, services, and accommodations.

Yes.  A business has the right to deny access to a service animal that disrupts their business.   For example, a service dog that barks and disrupts another patron’s enjoyment of a movie could be asked to leave.   Also, businesses, airlines, public programs and transportation providers may exclude a service animal when the animal’s behavior poses a direct threat to the health or safety of others.  However, some animals may be trained to whine or bark as part of doing their job.

A decision to exclude a service animal cannot be based on the notion that an animal might threaten the safety of others. It also cannot be based on a business person’s assumptions or bad experiences with other animals.  Each service animal must be considered individually.

The miniature horse is not included in the definition of service animal, which is limited to dogs. However, the new ADA regulations contain a specific provision which covers miniature horses.  Businesses must make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.  

Factors to assist in determining whether miniature horses can be accommodated are whether:

  • the miniature horse is housebroken
  • the miniature horse is under the owner’s control
  • the facility can accommodate the miniature horse’s type, size, and weight
  • the miniature horse’s presence will not compromise legitimate safety requirements necessary for the safe operation of the facility

Effective March 15, 2012, the applicable standards for new construction and alterations for either a public entity under Title II or a place of public accommodation under Title III are the 2010 ADA Standards for Accessible Design.   The 2010 ADA Standards can be found at: http://www.ada.gov/2010ADAstandards_index.htm

No, as of March 15, 2012, the applicable standards for alterations and additions are the 2010 ADA Standards for Accessible Design.   The 2010 ADA Standards can be found at: http://www.ada.gov/2010ADAstandards_index.htm.  

It is important to remember that the 1991 Standards are still relevant after March 15, 2012. Elements not altered after March 15, 2012 that comply with the requirements for those elements in the 1991 Standards, do not need to be modified, even if the new standards have different requirements for these elements.  This provision is called “Safe Harbor.”  However, if your business chooses to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies to the altered elements which must now comply with the 2010 ADA Standards.

The Department of Justice (DOJ) issued newly revised ADA regulations which began taking effect in March, 2011 and impacted entities covered by Title II and Title III. March 15, 2012 marked the compliance date for provisions governing the 2010 ADA Standards for new construction, alterations, program accessibility, and barrier removal.

On or after March 15th, 2012 all newly constructed or altered facilities must comply with the requirements in the 2010 Standards. If elements in existing facilities already comply with the 1991 Standards and are not being altered, entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

For title II entities, if the start date for construction is on or after March 15, 2012, all newly constructed or altered State and local government facilities must comply with the 2010 ADA Standards.

For businesses that are covered under title III, the compliance date for the 2010 ADA Standards for new construction and alterations is determined by:

  • the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government;
  • the date the last application for a building permit or permit extension is received by a State, county, or local government, where the government does not certify the completion of applications; or 
  • the start date of physical construction or alteration, if no permit is required. 

If that date is on or after March 15, 2012, then new construction and alterations must comply with the 2010 ADA Standards

Further information can be found in the U.S. Department of Justice publication “Effective Date – Compliance Date” at http://www.ada.gov/revised_effective_dates-2010.htm.

There are two types of accessible guest rooms, one type having “mobility features” and the other “communication features.”   The minimum number of accessible guest rooms in newly constructed facilities is provided in Tables 224.2 (mobility features) and 224.4 (communication features) of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.  Note that for rooms with mobility features, roll-in showers will be required where the total number of guest rooms provided exceeds 50. 

In alterations and additions, the minimum required number of accessible guest rooms required is based on the total number of guest rooms being altered or added instead of the total number of guest rooms provided in a facility. Note, that where guest rooms are altered, or added, the technical requirements stated in the 2010 ADA Standards apply only to those guest rooms being altered or added until the total number of accessible guest rooms in the entire hotel complies with the minimum number required for new construction as stated in the tables referred to above.

Accessible guest rooms must be dispersed among the various classes of guest rooms, and provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. Typically, each alteration of a facility is limited to a particular portion of the facility. As accessible guest rooms are added as a result of subsequent alterations, the required degree of dispersion is more likely to be achieved if all of the accessible guest rooms are not provided in the same portion of the facility. 

Source: Section 224.1.1, and accompanying Advisory, of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.

If the existing accessible parking spaces are in compliance with the 1991 ADA Standards, then the “safe harbor” provision applies and you do not have to make modifications to the accessible parking spaces even though the new 2010 ADA Standards have a few different requirements.  However, if your business chooses to alter the parking spaces, the safe harbor no longer applies and your accessible parking must comply with the 2010 ADA Standards.

For example: A business’ parking lot has a total of 250 parking spaces and, as required in the 1991 Standards, the lot includes seven accessible parking spaces, one of which is van-accessible. The 2010 Standards now require two van-accessible spaces even though the total minimum number of accessible spaces remains at seven.  The business does not have to modify its parking lot to provide the additional van-accessible space until the lot undergoes a planned alteration (re-striping, re-surfacing, etc.). 

If the existing accessible parking spaces are not in compliance with the 1991 ADA Standards, you must construct or alter accessible parking spaces in compliance with the 2010 ADA Standards if it is readily achievable to do so.

Yes.  Any service animal and their owner must be allowed to access those areas of a restaurant where customers are allowed to go.  Whenever a public health ordinance, or other local law, is different from the ADA, the law which is least restrictive for the person with a disability takes priority.  

Both tenants and landlords have obligations to ensure that facilities and operations are ADA compliant.  The lease may indicate how barrier removal responsibilities are shared but it is important to remember that the lease does not relieve either tenant or landlord from their individual obligations to comply with the ADA. 

The ideal time to address this issue is when you are leasing new space or renewing a lease.  A tenant should request that the landlord agree in the lease to modify those areas which are under the exclusive control of the landlord, such as parking, sidewalks, entrances, and rest rooms.  If the lease specifies that the tenant has control over these areas, then the tenant should request that a provision be added to the lease so that the tenant can make those alterations needed to comply with barrier removal requirements.

The U.S. Department of Justice issued revised Americans with Disabilities Act (ADA) regulations that took effect on March 15, 2011.  Under the revised ADA, public and commercial facilities such as restaurants, hotels, retail stores, taxicabs, theaters, concert halls, and sports facilities must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

Beginning on March 15, 2011, only dogs are recognized as service animals under Titles II and III of the ADA. A service animal is a dog that is individually trained to do work or perform tasks directly related to the person’s disability.  A service animal is NOT a pet.

Examples include:

  • guiding a person who is blind
  • alerting a person who is deaf when a sound occurs
  • pulling a wheelchair
  • alerting and protecting a person who is having a seizure
  • alerting individuals to the presence of allergens
  • providing physical support and assistance with balance and stability
  • helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors
  • providing a safety check or a room search for a person with Post Traumatic Stress Disorder (PTSD)

An animal that provides only emotional support, crime prevention, comfort or companionship is NOT considered to be a service animal because it is not trained to perform specific tasks associated with a person’s disability.

To determine if an animal is a service animal, you may ask two questions:  

1) Is the dog a service animal required because of a disability?

2) What work or task has the dog been trained to  perform? 

You may not ask these questions if the need for the service animal is obvious. Examples include when a dog is guiding an individual who is blind or is pulling a person’s wheelchair. You also may not:

  • ask about the nature or extent of an individual’s disability 
  • require proof that the animal has been certified, trained or licensed as a service animal
  • require the animal to wear an identifying vest or tag
  • ask that the dog demonstrate its ability to perform the task or work

Under the ADA, it is the training that distinguishes a service animal from other animals.  Some service animals are professionally trained; others are trained by their owners.  However, the task that the service animal is trained to do must be directly related to the owner’s disability.

Service animals in-training are not specifically addressed in the ADA.  However, some state laws may afford service animals in-training the same protections as service animals that have completed their training.

Individuals with disabilities are allowed to be accompanied by their service animals in all areas of public facilities and private businesses where members of the public are allowed to go. An individual with a service animal may not be segregated from other customers.  If a service animal’s presence compromises safety or is disruptive to the purpose of the business, they can be excluded from a specific facility such as a surgery or intensive care unit in a hospital in which a sterile field is required.

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.  If it is possible, separate the person with the allergy or other animal aversions from the person with a service animal.

Yes. Even if the business or a public program has a “no pets” policy, it may not deny entry to a person with a service animal.  Service animals are working animals, not pets. So, although a “no pets” policy is perfectly legal, it does not allow a business to exclude service animals.

Appropriate auxiliary aids and services may include services and devices such as qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; Appropriate auxiliary aids and services for individuals who are blind or have low vision may include services and devices such as qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.

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.

In general, the revised regulations published by the U.S. Department of Justice on September 15, 2010 covering places of public accommodation and commercial facilities, became effective on March 15, 2011.  The section of the revised regulations covering hotel reservation systems became effective on March 15, 2012.

A wheelchair is a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor, locomotion.  Individuals with mobility disabilities must be permitted to use wheelchairs and manually powered mobility aids, i.e., walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities, in any areas open to pedestrian traffic.

Businesses are not required to retrofit their facilities to install elevators unless such installation is readily achievable, which is unlikely in most cases.

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.

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.

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.

A qualified individual 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.

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 or practice" of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.

No, only readily achievable alternative steps must be undertaken.

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.

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.

Generally no, as long as a restaurant has waiters or waitresses that are qualified to read menus or retail stores have sales staff that are qualified to read sales tags to blind customers.

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.

Generally no, not if employees are able to communicate by using pen and notepad and it is effective.  However, in situations where the exchange of information is over a long duration or the information being exchanged is complex it may be necessary for the business to provide a qualified interpreter. A business should discuss with the person with the disability to determine which auxiliary aid or service will result in effective communication.

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.

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 case law under section 504 of the Rehabilitation Act and are to be determined on a case-by-case basis.

An OPDMD is any mobility device powered by batteries, fuel, or other engines that is used by individuals with mobility disabilities for the purpose of locomotion, whether or not it was designed primarily for use by individuals with mobility disabilities. OPDMDs may include golf cars, electronic personal assistance mobility devices, such as the Segway® Personal Transporter (PT), or any mobility device that is not a wheelchair, which is designed to operate in areas without defined pedestrian routes. Covered entities must make reasonable modifications in their policies, practices, or procedures to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate that the class of OPDMDs cannot be operated in accordance with legitimate safety requirements adopted by the entity.

Places of public accommodations and commercial facilities should use the 2010 ADA Standards for Accessible Design for readily achievable barrier removal, new construction and alterations. 

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.

Yes. Barrier removal needs to be accomplished only when it is "readily achievable" to do so.

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.

Yes. If a criterion screens out or tends to screen out individuals with disabilities, it may only be used if necessary for the provision of the services. For instance, it would be a violation for a retail store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to exclude all individuals with cerebral palsy. More subtle forms of discrimination are also prohibited. For example, requiring presentation of a driver's license as the sole acceptable means of identification for purposes of paying by check could constitute discrimination against individuals with vision impairments. This would be true if such individuals are ineligible to receive licenses and the use of an alternative means of identification is feasible.

It means "easily accomplishable and able to be carried out without much difficulty or expense."

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.

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.

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.

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.

Employer (55)

The ADA is a comprehensive civil rights law. It prohibits discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications.

Yes. The ADA defines qualified to mean 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.

It is important to remember that in the context of the ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

“Record of” means that the person has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities, even though the person does not currently have a disability.

“Regarded as” means that the person either:

  • Has an impairment that does not substantially limit a major life activity;
  • Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
  • Does not have any impairment, but is treated by an entity as having an impairment.

Sure. A man, who is in line for a promotion, has a history of cancer treatment, although he is now free of cancer. He is not given the promotion because his bosses are worried that, if his cancer returns, he won’t be able to do the job. He does not, at this point, meet the first part of the definition of disability because he does not have a physical or mental impairment that substantially limits one or more major life activities. However, based on his “record of” a disability, he is being discriminated against.

I’ll give you the “lawyer answer” – it depends. All people who meet the ADA definition of disability are covered by the ADA in general, but they still may not have rights under particular sections of the ADA. For example, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and is not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by other parts of the ADA.

Yes. A woman applies for a job as a customer service representative at a department store. Her face is badly scarred from an automobile accident. The interviewer doesn’t want to give her the job, in spite of her skills and experience, because he thinks customers will be uncomfortable looking at her. She is not substantially limited in any major life activity, but the interviewer is “regarding her as” if she has a disability.

Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Yes, the ADA definition of disability includes mental, as well as physical, impairments.

According to the Survey of Income and Program Participation (SIPP) data, approximately 54 million Americans have a disability.

Essential functions are the basic job duties.

ADA Regulations say that the following things should be taken into consideration when determining whether a job function is essential:

  • The employer’s judgment about which functions are essential;
  • Job descriptions that were written before a job was posted;
  • The amount of time spent performing the function;
  • The consequences of not requiring the person to perform the function;
  • The terms of a collective bargaining agreement; and
  • The work experience of others who have had, or currently hold, the same or similar positions.

The ADA is divided into five sections called “titles.” Each title covers a different area. Title I covers employment. Title II covers state and local government programs. Title III covers places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that cover things like retaliation and attorney fees.

Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. After the ADA was originally passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. Whether a person had a disability in order to sue became the focus of most disputes under the ADA. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition.

So the ADAAA was passed in 2008 and essentially overturned those Supreme Court cases that narrowed the definition of disability. Congress made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed in 1990.

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed.

An employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation.

Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.

According to EEOC, when an individual decides to request an accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. There is no need to mention the ADA or use the phrase “reasonable accommodation.”

Requests for reasonable accommodation do not have to be in writing and can be requested in a face-to-face conversation or using any other method of communication. Employers may choose to write a memo or letter confirming the employee’s request or may ask the employee to fill out a form or submit the request in written form.  However, the employee may want to put the request in writing even if the employer does not require it. Sometimes it is useful to have a paper trail in case there is a dispute about whether or when the accommodation was requested.

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation.

Example B: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Incorrect Example C: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

While an employer cannot ignore the initial request, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the employee and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," a prerequisite for the individual to be entitled to a reasonable accommodation.

Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, the regulations implementing the ADA Amendments Act of 2008 provide the ‘nine rules of construction’ to help determine what impairments constitute a disability. By applying those rules, the regulations state there will be some impairments that virtually always constitute a disability. The regulations also provide a list of examples of impairments that should easily be concluded to be disabilities.  Included in this list of examples are deafness, intellectual disability, autism, epilepsy, diabetes, cancer, HIV infection, multiple sclerosis, muscular dystrophy, cerebral palsy, mobility impairments requiring the use of a wheelchair, post-traumatic stress disorder, major depressive disorder, schizophrenia and bipolar disorder.

Sources: EEOC Final Rule Implementing the ADA Amendments Act of 2008 and Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA.   Links to these documents can be found at: http://www.eeoc.gov/laws/regulations/index.cfm.

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. 

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.

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.

The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.

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.

Yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat -- i.e., a significant risk of substantial harm -- to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a "direct threat" by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

No. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of an individual with a disability protected by the ADA when the employer takes action on the basis of their drug use.

The employment provisions of the ADA are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints regarding actions that occurred on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission or designated State human rights agencies. Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.  A charge must be filed within 180 calendar days from the date the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. A state’s designated human rights agency should be consulted to determine if the extended filing deadline applies.

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.

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.

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.

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.

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 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.

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 does not have a disability may accomplish the same function.

Only injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws. A worker also must be "qualified" (with or without reasonable accommodation) to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity. Also, many on-the-job injuries cause temporary impairments which heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers' compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA.

An employer may not inquire into an applicant's workers' compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person's workers compensation history in a medical inquiry or examination that is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination. Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers' compensation costs in the future. However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.

An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his/her condition or worker's compensation history.

An employer also may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers' compensation offices and "second injury" funds without violating ADA confidentiality requirements.

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an 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 an individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

The ADA prohibits discrimination based on relationship or association in order to protect individuals from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance, and from actions caused by bias or misinformation concerning certain disabilities. For example, this provision would protect a person whose spouse has a disability from being denied employment because of an employer's unfounded assumption that the applicant would use excessive leave to care for the spouse. It also would protect an individual who does volunteer work for people with AIDS from a discriminatory employment action motivated by that relationship or association.

Beginning on March 15, 2011, only dogs are recognized as service animals under Titles II and III of the ADA. A service animal is a dog that is individually trained to do work or perform tasks directly related to the person’s disability.  A service animal is NOT a pet.

Examples include:

  • guiding a person who is blind
  • alerting a person who is deaf when a sound occurs
  • pulling a wheelchair
  • alerting and protecting a person who is having a seizure
  • alerting individuals to the presence of allergens
  • providing physical support and assistance with balance and stability
  • helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors
  • providing a safety check or a room search for a person with Post Traumatic Stress Disorder (PTSD)

An animal that provides only emotional support, crime prevention, comfort or companionship is NOT considered to be a service animal because it is not trained to perform specific tasks associated with a person’s disability.

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 is 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.

A special tax credit is available to help smaller employers make accommodations required by the ADA. An eligible small business may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA. The credit is available for one-half the cost of "eligible access expenditures" that are more than $250 but less than $10,250.

A full tax deduction, up to $15,000 per year, also is available to any business for expenses of removing qualified architectural or transportation barriers. Expenses covered include costs of removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles. Additional information discussing the tax credits and deductions is contained in the Department of Justice's ADA Tax Incentive Packet for Businesses available from the ADA Information Line. Contact information is on page 30. Information about the tax credit and tax deduction can also be obtained from a local IRS office, or by contacting the Office of Chief Counsel, Internal Revenue Service.

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-offer 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 that they reasonably believe is caused by a medical condition, examinations required by other federal laws, return-to-work examinations when they reasonably believe that an employee will be unable to do his job or may pose a direct threat because of a medical condition, 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.

No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

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.

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 of 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.

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.

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.

Employment discrimination is prohibited against 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 a major life activity, 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.  There are two non-exhaustive lists 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.

Major life activities also 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.

Examples of specific impairments that should easily be concluded to be disabilities include: deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments, 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.

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.

Under the third part of the definition, a covered entity has regarded 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.

A qualified individual 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.

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.

An OPDMD is any mobility device powered by batteries, fuel, or other engines that is used by individuals with mobility disabilities for the purpose of locomotion, whether or not it was designed primarily for use by individuals with mobility disabilities. OPDMDs may include golf cars, electronic personal assistance mobility devices, such as the Segway® Personal Transporter (PT), or any mobility device that is not a wheelchair, which is designed to operate in areas without defined pedestrian routes. Covered entities must make reasonable modifications in their policies, practices, or procedures to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate that the class of OPDMDs cannot be operated in accordance with legitimate safety requirements adopted by the entity.

It means "easily accomplishable and able to be carried out without much difficulty or expense."

The title I employment provisions apply to private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees.

A wheelchair is a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor, locomotion.  Individuals with mobility disabilities must be permitted to use wheelchairs and manually powered mobility aids, i.e., walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities, in any areas open to pedestrian traffic.

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.

Appropriate auxiliary aids and services may include services and devices such as qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; Appropriate auxiliary aids and services for individuals who are blind or have low vision may include services and devices such as qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.

No, only readily achievable alternative steps must be undertaken.

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.

Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

I’ll give you the “lawyer answer” – it depends. All people who meet the ADA definition of disability are covered by the ADA in general, but they still may not have rights under particular sections of the ADA. For example, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and is not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by other parts of the ADA.

According to the Survey of Income and Program Participation (SIPP) data, approximately 54 million Americans have a disability.

Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. After the ADA was originally passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. Whether a person had a disability in order to sue became the focus of most disputes under the ADA. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition.

So the ADAAA was passed in 2008 and essentially overturned those Supreme Court cases that narrowed the definition of disability. Congress made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed in 1990.

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed.

The ADA is divided into five sections called “titles.” Each title covers a different area. Title I covers employment. Title II covers state and local government programs. Title III covers places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that cover things like retaliation and attorney fees.

The ADA is a comprehensive civil rights law. It prohibits discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications.

Yes, the ADA definition of disability includes mental, as well as physical, impairments.

The revised ADA Title II regulations do not require state or local government entities to do a new or updated self-evaluation or transition plan.  However, the Department of Justice urges state or local governments to establish procedures for an ongoing assessment of their compliance with the ADA's obligation to ensure all programs are readily accessible to and usable by people with disabilities (http://www.ada.gov/pcatoolkit/toolkitmain.htm ).  Regularly updating the self-evaluations and transition plans can help government entities monitor their compliance and stay on track with making changes to improve accessibility.

If a state and local government entity has not yet conducted a self-evaluation, it is recommended that they do so to identify any barriers to its programs, activities and services. A self-evaluation helps government entities identify areas of non-compliance and develop specific strategies to bring all policies and practices into compliance. Areas include but are not limited to:

  • structural changes needed to provide access to programs, activities and services;
  • policy modifications to ensure nondiscrimination; and
  • providing public notice that includes (i) explanation of the application of the ADA to the state and local governments programs, activities, and services; (ii) contact information for the employee who is designated to address ADA compliance issues; and (iii) information on the grievance procedure.

The self-evaluation plan should identify strategies to remove barriers, prioritize strategies, and provide a timeline for implementation. As new programs, activities and services are developed, it is important to review facilities to ensure compliance with the 2010 ADA Standards. 

It is important to remember that in the context of the ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

“Regarded as” means that the person either:

  • Has an impairment that does not substantially limit a major life activity;
  • Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
  • Does not have any impairment, but is treated by an entity as having an impairment.

Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, the regulations implementing the ADA Amendments Act of 2008 provide the ‘nine rules of construction’ to help determine what impairments constitute a disability. By applying those rules, the regulations state there will be some impairments that virtually always constitute a disability. The regulations also provide a list of examples of impairments that should easily be concluded to be disabilities.  Included in this list of examples are deafness, intellectual disability, autism, epilepsy, diabetes, cancer, HIV infection, multiple sclerosis, muscular dystrophy, cerebral palsy, mobility impairments requiring the use of a wheelchair, post-traumatic stress disorder, major depressive disorder, schizophrenia and bipolar disorder.

Sources: EEOC Final Rule Implementing the ADA Amendments Act of 2008 and Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA.   Links to these documents can be found at: http://www.eeoc.gov/laws/regulations/index.cfm.

You may ask an individual with a disability to remove a service animal from the premises (facility) if the animal is not housebroken or if the animal is out of control and the individual does not take effective action to control it.  Unwarranted and unprovoked violent behavior, such as uncontrolled barking, growling at other customers, jumping on other people, or running away from the owner are examples of unacceptable behavior.

The owner must use a harness, leash or other tether with his or her service animal unless the individual is unable to do so because of a disability or the use of these would make it difficult or unsafe for the service animal to perform tasks.  When a harness, leash or other tether are not being used, the service animal must be under the owner’s control through voice control, signals, or other effective means. 

If a service animal is removed from the premises, the individual with a disability must still be offered the opportunity to obtain goods, services, and accommodations.

Effective March 15, 2012, the applicable standards for new construction and alterations for either a public entity under Title II or a place of public accommodation under Title III are the 2010 ADA Standards for Accessible Design.   The 2010 ADA Standards can be found at: http://www.ada.gov/2010ADAstandards_index.htm

The Department of Justice (DOJ) issued newly revised ADA regulations which began taking effect in March, 2011 and impacted entities covered by Title II and Title III. March 15, 2012 marked the compliance date for provisions governing the 2010 ADA Standards for new construction, alterations, program accessibility, and barrier removal.

On or after March 15th, 2012 all newly constructed or altered facilities must comply with the requirements in the 2010 Standards. If elements in existing facilities already comply with the 1991 Standards and are not being altered, entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

For title II entities, if the start date for construction is on or after March 15, 2012, all newly constructed or altered State and local government facilities must comply with the 2010 ADA Standards.

For businesses that are covered under title III, the compliance date for the 2010 ADA Standards for new construction and alterations is determined by:

  • the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government;
  • the date the last application for a building permit or permit extension is received by a State, county, or local government, where the government does not certify the completion of applications; or 
  • the start date of physical construction or alteration, if no permit is required. 

If that date is on or after March 15, 2012, then new construction and alterations must comply with the 2010 ADA Standards

Further information can be found in the U.S. Department of Justice publication “Effective Date – Compliance Date” at http://www.ada.gov/revised_effective_dates-2010.htm.

The ADA does not have a provision to "grandfather" a facility but it does have a provision called “safe harbor” in the revised ADA regulations for businesses and state and local governments. A "safe harbor" means that you do not have to make modifications to elements in an existing building that comply with the 1991 Standards, even if the new 2010 Standards have different requirements for them. This provision is applied on an element-by-element basis.  However, if you choose to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies so the altered elements must comply with the 2010 ADA Standards.

A “safe harbor” does not apply to elements that were NOT addressed in the original 1991 Standards but ARE addressed in the 2010 ADA Standards. These elements include recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys. On or after March 15, 2012, public accommodations must remove architectural barriers to these elements listed above are subject to the new requirements in the 2010 Standards when it is readily achievable to do so.

The miniature horse is not included in the definition of service animal, which is limited to dogs. However, the new ADA regulations contain a specific provision which covers miniature horses.  Businesses must make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.  

Factors to assist in determining whether miniature horses can be accommodated are whether:

  • the miniature horse is housebroken
  • the miniature horse is under the owner’s control
  • the facility can accommodate the miniature horse’s type, size, and weight
  • the miniature horse’s presence will not compromise legitimate safety requirements necessary for the safe operation of the facility

Beginning on March 15, 2011, only dogs are recognized as service animals under Titles II and III of the ADA. A service animal is a dog that is individually trained to do work or perform tasks directly related to the person’s disability.  A service animal is NOT a pet.

Examples include:

  • guiding a person who is blind
  • alerting a person who is deaf when a sound occurs
  • pulling a wheelchair
  • alerting and protecting a person who is having a seizure
  • alerting individuals to the presence of allergens
  • providing physical support and assistance with balance and stability
  • helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors
  • providing a safety check or a room search for a person with Post Traumatic Stress Disorder (PTSD)

An animal that provides only emotional support, crime prevention, comfort or companionship is NOT considered to be a service animal because it is not trained to perform specific tasks associated with a person’s disability.

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.

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.

 

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.

State and local agencies that provide emergency telephone services must provide "direct access" to individuals who rely on a teletypewriter (TTY, also known as a telecommunication device for deaf persons or 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.

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.

A State or local government will be in compliance with the ADA for new construction and alterations if it follows the 2010 ADA Standards for Accessible Design. Effective March 15, 2012 the 2010 ADA Standards must be used for new construction and alterations undertaken by state and local governments.

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.

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.

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.

A self-evaluation is a public entity's assessment of its current policies and practices. The self-evaluation identifies and corrects those policies and practices that are inconsistent with title II's requirements. All public entities should have completed a self-evaluation by January 26, 1993. A public entity that employs 50 or more employees must retain its self-evaluation for three years. Other public entities are not required to retain their self-evaluations, but are encouraged to do so because these documents evidence a public entity's good faith efforts to comply with title II's requirements.

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 or practice" of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.

Structural changes needed for program accessibility must be made as expeditiously as possible, and should have been made by January 26, 1995. This three-year time period was 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.

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).

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.

A wheelchair is a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor, locomotion.  Individuals with mobility disabilities must be permitted to use wheelchairs and manually powered mobility aids, i.e., walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities, in any areas open to pedestrian traffic.

A qualified individual 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.

Yes. Title II prohibits all public entities, regardless of the size of their work force, from discriminating in employment against individuals with disabilities. In addition to title II's employment coverage, title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit employment discrimination against individuals with disabilities by certain public entities.

Appropriate auxiliary aids and services may include services and devices such as qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; Appropriate auxiliary aids and services for individuals who are blind or have low vision may include services and devices such as qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.

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 disability 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.

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.

An OPDMD is any mobility device powered by batteries, fuel, or other engines that is used by individuals with mobility disabilities for the purpose of locomotion, whether or not it was designed primarily for use by individuals with mobility disabilities. OPDMDs may include golf cars, electronic personal assistance mobility devices, such as the Segway® Personal Transporter (PT), or any mobility device that is not a wheelchair, which is designed to operate in areas without defined pedestrian routes. Covered entities must make reasonable modifications in their policies, practices, or procedures to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate that the class of OPDMDs cannot be operated in accordance with legitimate safety requirements adopted by the entity.

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.

In general, they became effective on January 26, 1992.  Revised regulations published by the U.S. Department of Justice on September 15, 2010 covering state and local governments, became effective on March 15, 2011.

It means "easily accomplishable and able to be carried out without much difficulty or expense."

The ADA requires the establishment of telephone relay services for individuals who use teletypewriters (TTYs, also known as telecommunications devices for deaf persons or TDDs) or similar devices. The Federal Communications Commission has issued regulations specifying standards for the operation of these services.

An employee with a disability who has been granted medical leave under the ADA may return to the same job unless the employer demonstrates that holding the job open would cause undue hardship to the business or organization.  If an employer has the reasonable belief that an employee will be unable to continue performing essential job functions, or will pose a significant risk to the health or safety of him/herself or other employees due to a medical condition, the employer may make disability-related inquiries or require the employee to have a medical examination. Any inquiry or examination must be limited to what is needed to assess the employee's ability to work. The employer may not use the employee's leave as a justification for making unrelated inquiries or requiring an unrelated medical examination.

An employee may have also been granted medical leave under the Family Medical Leave Act (FMLA). In this case, an employee has a right to return to the same or similar job after his/her leave has expired.  The FMLA allows employers to require a return-to-work certification from a health provider for all medical leaves, as long as the same requirement is applied to all employees with similar job positions who are returning from leave, not just those on FMLA leave.

The FMLA and the ADA both require a covered employer to grant medical leave to an employee in certain circumstances. For more information go to: http://www.eeoc.gov/policy/docs/fmlaada.html

Both public and private colleges and universities must provide equal access to postsecondary education for students with disabilities. Title II of the ADA covers publicly-funded universities, community colleges and vocational schools. Title III of the ADA covers privately-funded schools.  All public or private schools that receive federal funding are required under Section 504 of the Rehabilitation Act to make their programs accessible to students with disabilities.

All the programs of postsecondary institutions, including extracurricular activities, must be accessible to students with disabilities. The schools can do this in several ways: by providing architectural access to buildings, including residential facilities; by providing aids and services necessary for effective communication, like sign language interpreters, Braille or electronic formats and assistive listening devices; and by modifying policies, practices and procedures, such as testing accommodations and access to school facilities for service animals.  Accommodations and program modifications should be individually designed to meet the needs of the student with a disability.

Accommodations and modifications of policies and practices are not required when it would fundamentally alter the nature of the service, program, or activity or give rise to an undue financial or administrative burden.

Postsecondary institutions often have an office that coordinates accommodations for students with disabilities.  The student should notify the appropriate institutional office well in advance of the needed modification or accommodation.  Technical guidance is available through the ADA National Network at 1-800-949-4232. For more information please visit:

Medicare, Medicaid, private health or disability insurance, and Worker’s Compensation may pay for some assistive technology. Funding sources often require a statement of medical necessity for the product or equipment and a prescription from a doctor or other health professional. Public educational institutions may have funding for assistive technologies needed to meet educational goals.  State vocational rehabilitation agencies may provide assistive technology for their clients when it is needed to achieve vocational goals.  Many states have programs to provide adaptive telecommunications equipment for deaf and hard of hearing individuals and others who need adaptive equipment for telecommunications.  For more information about funding assistive technology, contact your state’s Assistive Technology Act Program.  A list of these programs can be found at http://assistivetech.net/webresources/stateTechActProjects.php.

For home modifications, such as installing ramps or renovating bathrooms, funds may be available through vocational rehabilitation agencies, local independent living centers, and local volunteer organizations that offer labor or materials for construction.  To find contact information for your local center for independent living visit http://www.ilru.org/.

Veterans with disabilities may receive assistance for improvements necessary to make a home and essential lavatory and sanitary facilities accessible under the Home Improvements and Structural Alterations (HISA) program. A HISA grant from the U.S. Department of Veterans Affairs is available to Veterans who have received a medical determination indicating that improvements and structural alterations are necessary or appropriate for the effective treatment of his/her disability. The HISA program is available for both service-connected Veterans and non-service-connected Veterans.

Home improvement benefits up to $6,800 may be provided for a:

  • service-connected condition
  • non-service-connected condition of a Veteran rated 50 percent or more service-connected

Home improvement benefits up to $2,000 may be provided to all other Veterans registered in the VA health care system. The prosthetics department of the VA may also donate lifting equipment such as chairlifts or vertical porch lifts.  To learn more about the program, visit http://www.prosthetics.va.gov/HISA2.asp.

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed.

The ADA is a comprehensive civil rights law. It prohibits discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications.

It is important to remember that in the context of the ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

For example, if I do not have a disability, but I work in an HIV clinic, it would not be legal for someone to discriminate against me based on the fact that I work with, or “associate” with, people who have HIV.

Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

“Regarded as” means that the person either:

  • Has an impairment that does not substantially limit a major life activity;
  • Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
  • Does not have any impairment, but is treated by an entity as having an impairment.

Yes. A woman applies for a job as a customer service representative at a department store. Her face is badly scarred from an automobile accident. The interviewer doesn’t want to give her the job, in spite of her skills and experience, because he thinks customers will be uncomfortable looking at her. She is not substantially limited in any major life activity, but the interviewer is “regarding her as” if she has a disability.

I’ll give you the “lawyer answer” – it depends. All people who meet the ADA definition of disability are covered by the ADA in general, but they still may not have rights under particular sections of the ADA. For example, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and is not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by other parts of the ADA.

Yes, the ADA definition of disability includes mental, as well as physical, impairments.

According to the Survey of Income and Program Participation (SIPP) data, approximately 54 million Americans have a disability.

The ADA is divided into five sections called “titles.” Each title covers a different area. Title I covers employment. Title II covers state and local government programs. Title III covers places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that cover things like retaliation and attorney fees.

Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. After the ADA was originally passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. Whether a person had a disability in order to sue became the focus of most disputes under the ADA. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition.

So the ADAAA was passed in 2008 and essentially overturned those Supreme Court cases that narrowed the definition of disability. Congress made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed in 1990.

Not necessarily. Because Title I is about employment, a person must meet the definition of disability and must also be qualified for the job. There are two components to being qualified. First, you need to have the skill, experience, education, and other job-related requirements for the position. For example, it’s legal for an employer to require that a person applying for the job of a foreign language translator be able to translate a foreign language.

The other component of being qualified, in terms of employment, is that you must be able to perform the essential functions of the job, with or without reasonable accommodation. In other words, getting a reasonable accommodation could make you qualified for the job. For example, a person who is deaf may be qualified to the perform the essential functions of a customer service representative once s/he receives the opportunity to use a video relay service and specialized computer software as a reasonable accommodation.

You may ask an individual with a disability to remove a service animal from the premises (facility) if the animal is not housebroken or if the animal is out of control and the individual does not take effective action to control it.  Unwarranted and unprovoked violent behavior, such as uncontrolled barking, growling at other customers, jumping on other people, or running away from the owner are examples of unacceptable behavior.

The owner must use a harness, leash or other tether with his or her service animal unless the individual is unable to do so because of a disability or the use of these would make it difficult or unsafe for the service animal to perform tasks.  When a harness, leash or other tether are not being used, the service animal must be under the owner’s control through voice control, signals, or other effective means. 

If a service animal is removed from the premises, the individual with a disability must still be offered the opportunity to obtain goods, services, and accommodations.

The miniature horse is not included in the definition of service animal, which is limited to dogs. However, the new ADA regulations contain a specific provision which covers miniature horses.  Businesses must make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.  

Factors to assist in determining whether miniature horses can be accommodated are whether:

  • the miniature horse is housebroken
  • the miniature horse is under the owner’s control
  • the facility can accommodate the miniature horse’s type, size, and weight
  • the miniature horse’s presence will not compromise legitimate safety requirements necessary for the safe operation of the facility

According to EEOC, when an individual decides to request an accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. There is no need to mention the ADA or use the phrase “reasonable accommodation.”

Requests for reasonable accommodation do not have to be in writing and can be requested in a face-to-face conversation or using any other method of communication. Employers may choose to write a memo or letter confirming the employee’s request or may ask the employee to fill out a form or submit the request in written form.  However, the employee may want to put the request in writing even if the employer does not require it. Sometimes it is useful to have a paper trail in case there is a dispute about whether or when the accommodation was requested.

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation.

Example B: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Incorrect Example C: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

While an employer cannot ignore the initial request, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the employee and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," a prerequisite for the individual to be entitled to a reasonable accommodation.

The Department of Justice (DOJ) issued newly revised ADA regulations which began taking effect in March, 2011 and impacted entities covered by Title II and Title III. March 15, 2012 marked the compliance date for provisions governing the 2010 ADA Standards for new construction, alterations, program accessibility, and barrier removal.

On or after March 15th, 2012 all newly constructed or altered facilities must comply with the requirements in the 2010 Standards. If elements in existing facilities already comply with the 1991 Standards and are not being altered, entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

For title II entities, if the start date for construction is on or after March 15, 2012, all newly constructed or altered State and local government facilities must comply with the 2010 ADA Standards.

For businesses that are covered under title III, the compliance date for the 2010 ADA Standards for new construction and alterations is determined by:

  • the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government;
  • the date the last application for a building permit or permit extension is received by a State, county, or local government, where the government does not certify the completion of applications; or 
  • the start date of physical construction or alteration, if no permit is required. 

If that date is on or after March 15, 2012, then new construction and alterations must comply with the 2010 ADA Standards

Further information can be found in the U.S. Department of Justice publication “Effective Date – Compliance Date” at http://www.ada.gov/revised_effective_dates-2010.htm.

Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, the regulations implementing the ADA Amendments Act of 2008 provide the ‘nine rules of construction’ to help determine what impairments constitute a disability. By applying those rules, the regulations state there will be some impairments that virtually always constitute a disability. The regulations also provide a list of examples of impairments that should easily be concluded to be disabilities.  Included in this list of examples are deafness, intellectual disability, autism, epilepsy, diabetes, cancer, HIV infection, multiple sclerosis, muscular dystrophy, cerebral palsy, mobility impairments requiring the use of a wheelchair, post-traumatic stress disorder, major depressive disorder, schizophrenia and bipolar disorder.

Sources: EEOC Final Rule Implementing the ADA Amendments Act of 2008 and Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA.   Links to these documents can be found at: http://www.eeoc.gov/laws/regulations/index.cfm.

If you feel that you or another person has been discriminated against by an entity covered by either Title II or III of the ADA, you may file a complaint with the U.S. Department of Justice, Disability Rights Section. Title II covers state and local government entities and Title III public accommodations and commercial facilities.  Public accommodations are businesses that provide goods or services for the public. 

Complaints concerning discrimination in employment, often referred to as Title I complaints, should be addressed by the U.S. Equal Employment Opportunity Commission (EEOC) and/or the agency responsible for enforcing state laws against employment discrimination.  The EEOC process for filing a charge of employment discrimination may be found at: http://www.eeoc.gov/employees/howtofile.cfm.

Title II and III complaints may be sent by e-mail. Since letters and packages sent to the Disability Rights Section by U.S. Mail or other delivery service are delayed for security screening, using e-mail is the quickest way of filing a complaint. E-mail complaints also receive an immediate reply confirming that they have been received. Remember that there can be no guarantee of privacy when you send an e-mail.

The most important part of filing a Title II and III complaint is ensuring that you provide the Department of Justice with the following information:

  • Your full name, address, email, the telephone numbers where we can reach you during the day and evening, and the name of the party discriminated against (if known);
  • The name and address of the business, organization, institution, or person that you believe has discriminated;
  • A brief description of the acts of discrimination, the dates they occurred, and the names of individuals involved;
  • Other information that you believe necessary to support your complaint, including copies of relevant documents (not originals); and
  • Provide the Department of Justice with the information needed to ensure that they communicate with you effectively. Please let the Department know if you need to receive written communications in a specific format, such as large print, Braille, e-mail, or audio recording, or if you need to receive oral communications by video phone or TTY.

To ensure that all necessary information is provided, you may use this ADA Title II complaint form (http://www.ada.gov/t2cmpfrm.htm), which can be used for any Title II or III ADA complaint.  Additional advice and instructions for filing a Title III complaint can be found at: http://www.ada.gov/t3compfm.htm.

Include all of the information listed above, either in the body of the email or in an attachment to your e-mail. Please attach any relevant documents to your e-mail.

Send your complaint to the following e-mail address: ada.complaint@usdoj.gov.

You will receive an automatic reply e-mail confirming that your complaint has been received. Please keep a copy of your complaint and the reply e-mail for your records. If you do not receive a reply email, you may have sent your complaint to the wrong e-mail address.

The Department of Justice, Disability Rights Section accepts complaints sent by regular mail but receiving the complaints may be delayed by 4 - 6 weeks because of necessary security screening precautions. To file a complaint using U.S. Postal Service or by any other parcel delivery service, send your completed complaint form (http://www.ada.gov/t2cmpfrm.htm) or a signed letter containing the information and documents described above to the following address:

U.S. Department of Justice
Civil Rights Division
Disability Rights Section - NYAV
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Keep a copy of your complaint. Send copies (not originals) of relevant documents. The security screening process can damage documents sent to the Department of Justice, so please keep original documents for your own records.

Source: Frequently Asked Questions about Filing an ADA Complaint with the U.S. Department of Justice - http://www.ada.gov/fact_on_complaint.htm

The Regional ADA Centers do not provide direct attorney referrals.  The National Disability Rights Network (NDRN) is the nonprofit membership organization for the federally mandated Protection and Advocacy (P&A) Systems and Client Assistance Programs (CAP).  There is a P&A/CAP agency in every state and U.S. territory as well as one serving the Native American population in the four corners region.  Collectively, the P&A/CAP network is the largest provider of legally based advocacy services to people with disabilities in the United States.  To find your local Protection and Advocacy agency and Client Assistance Program in each state, go to - http://www.ndrn.org/en/ndrn-member-agencies.html

Your state or local bar association may also provide a good starting point in the search for legal advice or representation.  To find your local bar association, go to http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm, or call 1-800-285-2221

The employment provisions of the ADA are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints regarding actions that occurred on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission or designated State human rights agencies. Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.  A charge must be filed within 180 calendar days from the date the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. A state’s designated human rights agency should be consulted to determine if the extended filing deadline applies.

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.

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. 

Beginning on March 15, 2011, only dogs are recognized as service animals under Titles II and III of the ADA. A service animal is a dog that is individually trained to do work or perform tasks directly related to the person’s disability.  A service animal is NOT a pet.

Examples include:

  • guiding a person who is blind
  • alerting a person who is deaf when a sound occurs
  • pulling a wheelchair
  • alerting and protecting a person who is having a seizure
  • alerting individuals to the presence of allergens
  • providing physical support and assistance with balance and stability
  • helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors
  • providing a safety check or a room search for a person with Post Traumatic Stress Disorder (PTSD)

An animal that provides only emotional support, crime prevention, comfort or companionship is NOT considered to be a service animal because it is not trained to perform specific tasks associated with a person’s disability.

Appropriate auxiliary aids and services may include services and devices such as qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; Appropriate auxiliary aids and services for individuals who are blind or have low vision may include services and devices such as qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.

A wheelchair is a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor, locomotion.  Individuals with mobility disabilities must be permitted to use wheelchairs and manually powered mobility aids, i.e., walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities, in any areas open to pedestrian traffic.

An OPDMD is any mobility device powered by batteries, fuel, or other engines that is used by individuals with mobility disabilities for the purpose of locomotion, whether or not it was designed primarily for use by individuals with mobility disabilities. OPDMDs may include golf cars, electronic personal assistance mobility devices, such as the Segway® Personal Transporter (PT), or any mobility device that is not a wheelchair, which is designed to operate in areas without defined pedestrian routes. Covered entities must make reasonable modifications in their policies, practices, or procedures to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate that the class of OPDMDs cannot be operated in accordance with legitimate safety requirements adopted by the entity.

It means "easily accomplishable and able to be carried out without much difficulty or expense."

No, only readily achievable alternative steps must be undertaken.

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.

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.

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.

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 or practice" of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.

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)).

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.

The ADA requires the establishment of telephone relay services for individuals who use teletypewriters (TTYs, also known as telecommunications devices for deaf persons or TDDs) or similar devices. The Federal Communications Commission has issued regulations specifying standards for the operation of these services.

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.

 

Employment discrimination is prohibited against 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 a major life activity, 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.  There are two non-exhaustive lists 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.

Major life activities also 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.

Examples of specific impairments that should easily be concluded to be disabilities include: deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments, 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.

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.

Under the third part of the definition, a covered entity has regarded 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.

A qualified individual 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.

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.

Yes, this is a violation of the ADA. Taxicab companies may not refuse to provide services to individuals with disabilities. Private taxicab companies are also prohibited from charging higher fares or fees for transporting individuals with disabilities and their service animals than they charge to other persons for the same service.  The owner must have the service animal under control and the animal must be housebroken.

A person traveling with a service animal:

  • cannot be denied access to transportation, even if there is a “no pets” policy
  • cannot be forced to sit in a particular spot
  • does not have to provide advance notice that he or she will be traveling with a service animal 

These laws apply to both public and private transportation providers and include subways, fixed route buses, paratransit, rail and light rail, taxicabs, shuttles and limousine services.

 

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.

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)).

State and local agencies that provide emergency telephone services must provide "direct access" to individuals who rely on a teletypewriter (TTY, also known as a telecommunication device for deaf persons or 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.

The ADA requires the establishment of telephone relay services for individuals who use teletypewriters (TTYs, also known as telecommunications devices for deaf persons or TDDs) or similar devices. The Federal Communications Commission has issued regulations specifying standards for the operation of these services.

Medicare, Medicaid, private health or disability insurance, and Worker’s Compensation may pay for some assistive technology. Funding sources often require a statement of medical necessity for the product or equipment and a prescription from a doctor or other health professional. Public educational institutions may have funding for assistive technologies needed to meet educational goals.  State vocational rehabilitation agencies may provide assistive technology for their clients when it is needed to achieve vocational goals.  Many states have programs to provide adaptive telecommunications equipment for deaf and hard of hearing individuals and others who need adaptive equipment for telecommunications.  For more information about funding assistive technology, contact your state’s Assistive Technology Act Program.  A list of these programs can be found at http://assistivetech.net/webresources/stateTechActProjects.php.

For home modifications, such as installing ramps or renovating bathrooms, funds may be available through vocational rehabilitation agencies, local independent living centers, and local volunteer organizations that offer labor or materials for construction.  To find contact information for your local center for independent living visit http://www.ilru.org/.

Veterans with disabilities may receive assistance for improvements necessary to make a home and essential lavatory and sanitary facilities accessible under the Home Improvements and Structural Alterations (HISA) program. A HISA grant from the U.S. Department of Veterans Affairs is available to Veterans who have received a medical determination indicating that improvements and structural alterations are necessary or appropriate for the effective treatment of his/her disability. The HISA program is available for both service-connected Veterans and non-service-connected Veterans.

Home improvement benefits up to $6,800 may be provided for a:

  • service-connected condition
  • non-service-connected condition of a Veteran rated 50 percent or more service-connected

Home improvement benefits up to $2,000 may be provided to all other Veterans registered in the VA health care system. The prosthetics department of the VA may also donate lifting equipment such as chairlifts or vertical porch lifts.  To learn more about the program, visit http://www.prosthetics.va.gov/HISA2.asp.

A wheelchair is a manually operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor, or of both indoor and outdoor, locomotion.  Individuals with mobility disabilities must be permitted to use wheelchairs and manually powered mobility aids, i.e., walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities, in any areas open to pedestrian traffic.

Appropriate auxiliary aids and services may include services and devices such as qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; Appropriate auxiliary aids and services for individuals who are blind or have low vision may include services and devices such as qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed.

The revised ADA Title II regulations do not require state or local government entities to do a new or updated self-evaluation or transition plan.  However, the Department of Justice urges state or local governments to establish procedures for an ongoing assessment of their compliance with the ADA's obligation to ensure all programs are readily accessible to and usable by people with disabilities (http://www.ada.gov/pcatoolkit/toolkitmain.htm ).  Regularly updating the self-evaluations and transition plans can help government entities monitor their compliance and stay on track with making changes to improve accessibility.

If a state and local government entity has not yet conducted a self-evaluation, it is recommended that they do so to identify any barriers to its programs, activities and services. A self-evaluation helps government entities identify areas of non-compliance and develop specific strategies to bring all policies and practices into compliance. Areas include but are not limited to:

  • structural changes needed to provide access to programs, activities and services;
  • policy modifications to ensure nondiscrimination; and
  • providing public notice that includes (i) explanation of the application of the ADA to the state and local governments programs, activities, and services; (ii) contact information for the employee who is designated to address ADA compliance issues; and (iii) information on the grievance procedure.

The self-evaluation plan should identify strategies to remove barriers, prioritize strategies, and provide a timeline for implementation. As new programs, activities and services are developed, it is important to review facilities to ensure compliance with the 2010 ADA Standards. 

If you feel that you or another person has been discriminated against by an entity covered by either Title II or III of the ADA, you may file a complaint with the U.S. Department of Justice, Disability Rights Section. Title II covers state and local government entities and Title III public accommodations and commercial facilities.  Public accommodations are businesses that provide goods or services for the public. 

Complaints concerning discrimination in employment, often referred to as Title I complaints, should be addressed by the U.S. Equal Employment Opportunity Commission (EEOC) and/or the agency responsible for enforcing state laws against employment discrimination.  The EEOC process for filing a charge of employment discrimination may be found at: http://www.eeoc.gov/employees/howtofile.cfm.

Title II and III complaints may be sent by e-mail. Since letters and packages sent to the Disability Rights Section by U.S. Mail or other delivery service are delayed for security screening, using e-mail is the quickest way of filing a complaint. E-mail complaints also receive an immediate reply confirming that they have been received. Remember that there can be no guarantee of privacy when you send an e-mail.

The most important part of filing a Title II and III complaint is ensuring that you provide the Department of Justice with the following information:

  • Your full name, address, email, the telephone numbers where we can reach you during the day and evening, and the name of the party discriminated against (if known);
  • The name and address of the business, organization, institution, or person that you believe has discriminated;
  • A brief description of the acts of discrimination, the dates they occurred, and the names of individuals involved;
  • Other information that you believe necessary to support your complaint, including copies of relevant documents (not originals); and
  • Provide the Department of Justice with the information needed to ensure that they communicate with you effectively. Please let the Department know if you need to receive written communications in a specific format, such as large print, Braille, e-mail, or audio recording, or if you need to receive oral communications by video phone or TTY.

To ensure that all necessary information is provided, you may use this ADA Title II complaint form (http://www.ada.gov/t2cmpfrm.htm), which can be used for any Title II or III ADA complaint.  Additional advice and instructions for filing a Title III complaint can be found at: http://www.ada.gov/t3compfm.htm.

Include all of the information listed above, either in the body of the email or in an attachment to your e-mail. Please attach any relevant documents to your e-mail.

Send your complaint to the following e-mail address: ada.complaint@usdoj.gov.

You will receive an automatic reply e-mail confirming that your complaint has been received. Please keep a copy of your complaint and the reply e-mail for your records. If you do not receive a reply email, you may have sent your complaint to the wrong e-mail address.

The Department of Justice, Disability Rights Section accepts complaints sent by regular mail but receiving the complaints may be delayed by 4 - 6 weeks because of necessary security screening precautions. To file a complaint using U.S. Postal Service or by any other parcel delivery service, send your completed complaint form (http://www.ada.gov/t2cmpfrm.htm) or a signed letter containing the information and documents described above to the following address:

U.S. Department of Justice
Civil Rights Division
Disability Rights Section - NYAV
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Keep a copy of your complaint. Send copies (not originals) of relevant documents. The security screening process can damage documents sent to the Department of Justice, so please keep original documents for your own records.

Source: Frequently Asked Questions about Filing an ADA Complaint with the U.S. Department of Justice - http://www.ada.gov/fact_on_complaint.htm

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.

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.

In general, they became effective on January 26, 1992.  Revised regulations published by the U.S. Department of Justice on September 15, 2010 covering state and local governments, became effective on March 15, 2011.

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.

 

A self-evaluation is a public entity's assessment of its current policies and practices. The self-evaluation identifies and corrects those policies and practices that are inconsistent with title II's requirements. All public entities should have completed a self-evaluation by January 26, 1993. A public entity that employs 50 or more employees must retain its self-evaluation for three years. Other public entities are not required to retain their self-evaluations, but are encouraged to do so because these documents evidence a public entity's good faith efforts to comply with title II's requirements.

Structural changes needed for program accessibility must be made as expeditiously as possible, and should have been made by January 26, 1995. This three-year time period was 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.

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).

Not necessarily. Because Title I is about employment, a person must meet the definition of disability and must also be qualified for the job. There are two components to being qualified. First, you need to have the skill, experience, education, and other job-related requirements for the position. For example, it’s legal for an employer to require that a person applying for the job of a foreign language translator be able to translate a foreign language.

The other component of being qualified, in terms of employment, is that you must be able to perform the essential functions of the job, with or without reasonable accommodation. In other words, getting a reasonable accommodation could make you qualified for the job. For example, a person who is deaf may be qualified to the perform the essential functions of a customer service representative once s/he receives the opportunity to use a video relay service and specialized computer software as a reasonable accommodation.

An employee with a disability who has been granted medical leave under the ADA may return to the same job unless the employer demonstrates that holding the job open would cause undue hardship to the business or organization.  If an employer has the reasonable belief that an employee will be unable to continue performing essential job functions, or will pose a significant risk to the health or safety of him/herself or other employees due to a medical condition, the employer may make disability-related inquiries or require the employee to have a medical examination. Any inquiry or examination must be limited to what is needed to assess the employee's ability to work. The employer may not use the employee's leave as a justification for making unrelated inquiries or requiring an unrelated medical examination.

An employee may have also been granted medical leave under the Family Medical Leave Act (FMLA). In this case, an employee has a right to return to the same or similar job after his/her leave has expired.  The FMLA allows employers to require a return-to-work certification from a health provider for all medical leaves, as long as the same requirement is applied to all employees with similar job positions who are returning from leave, not just those on FMLA leave.

The FMLA and the ADA both require a covered employer to grant medical leave to an employee in certain circumstances. For more information go to: http://www.eeoc.gov/policy/docs/fmlaada.html

Yes. The ADA defines qualified to mean 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.

Essential functions are the basic job duties.

ADA Regulations say that the following things should be taken into consideration when determining whether a job function is essential:

  • The employer’s judgment about which functions are essential;
  • Job descriptions that were written before a job was posted;
  • The amount of time spent performing the function;
  • The consequences of not requiring the person to perform the function;
  • The terms of a collective bargaining agreement; and
  • The work experience of others who have had, or currently hold, the same or similar positions.

For example, if I do not have a disability, but I work in an HIV clinic, it would not be legal for someone to discriminate against me based on the fact that I work with, or “associate” with, people who have HIV.

“Record of” means that the person has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities, even though the person does not currently have a disability.

Sure. A man, who is in line for a promotion, has a history of cancer treatment, although he is now free of cancer. He is not given the promotion because his bosses are worried that, if his cancer returns, he won’t be able to do the job. He does not, at this point, meet the first part of the definition of disability because he does not have a physical or mental impairment that substantially limits one or more major life activities. However, based on his “record of” a disability, he is being discriminated against.

Yes. A woman applies for a job as a customer service representative at a department store. Her face is badly scarred from an automobile accident. The interviewer doesn’t want to give her the job, in spite of her skills and experience, because he thinks customers will be uncomfortable looking at her. She is not substantially limited in any major life activity, but the interviewer is “regarding her as” if she has a disability.

According to EEOC, when an individual decides to request an accommodation, the individual or his/her representative must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. There is no need to mention the ADA or use the phrase “reasonable accommodation.”

Requests for reasonable accommodation do not have to be in writing and can be requested in a face-to-face conversation or using any other method of communication. Employers may choose to write a memo or letter confirming the employee’s request or may ask the employee to fill out a form or submit the request in written form.  However, the employee may want to put the request in writing even if the employer does not require it. Sometimes it is useful to have a paper trail in case there is a dispute about whether or when the accommodation was requested.

Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." This is a request for a reasonable accommodation.

Example B: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. This is a request for reasonable accommodation.

Incorrect Example C: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. He does not link his need for the new chair with a medical condition.

While an employer cannot ignore the initial request, this request does not necessarily mean that the employer is required to provide the change. A request for reasonable accommodation is the first step in an informal, interactive process between the employee and the employer. In some instances, before addressing the merits of the accommodation request, the employer needs to determine if the individual's medical condition meets the ADA definition of "disability," a prerequisite for the individual to be entitled to a reasonable accommodation.

An employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation.

Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.

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.

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 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.

The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation.

Only injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws. A worker also must be "qualified" (with or without reasonable accommodation) to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity. Also, many on-the-job injuries cause temporary impairments which heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers' compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA.

An employer may not inquire into an applicant's workers' compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person's workers compensation history in a medical inquiry or examination that is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination. Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers' compensation costs in the future. However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.

An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his/her condition or worker's compensation history.

An employer also may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers' compensation offices and "second injury" funds without violating ADA confidentiality requirements.

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-offer 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 that they reasonably believe is caused by a medical condition, examinations required by other federal laws, return-to-work examinations when they reasonably believe that an employee will be unable to do his job or may pose a direct threat because of a medical condition, 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.

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 is 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.

A special tax credit is available to help smaller employers make accommodations required by the ADA. An eligible small business may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA. The credit is available for one-half the cost of "eligible access expenditures" that are more than $250 but less than $10,250.

A full tax deduction, up to $15,000 per year, also is available to any business for expenses of removing qualified architectural or transportation barriers. Expenses covered include costs of removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles. Additional information discussing the tax credits and deductions is contained in the Department of Justice's ADA Tax Incentive Packet for Businesses available from the ADA Information Line. Contact information is on page 30. Information about the tax credit and tax deduction can also be obtained from a local IRS office, or by contacting the Office of Chief Counsel, Internal Revenue Service.

The employment provisions of the ADA are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints regarding actions that occurred on or after July 26, 1992, may be filed with the Equal Employment Opportunity Commission or designated State human rights agencies. Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.  A charge must be filed within 180 calendar days from the date the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis. A state’s designated human rights agency should be consulted to determine if the extended filing deadline applies.

No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

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.

The ADA prohibits discrimination based on relationship or association in order to protect individuals from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance, and from actions caused by bias or misinformation concerning certain disabilities. For example, this provision would protect a person whose spouse has a disability from being denied employment because of an employer's unfounded assumption that the applicant would use excessive leave to care for the spouse. It also would protect an individual who does volunteer work for people with AIDS from a discriminatory employment action motivated by that relationship or association.

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.

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. 

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.

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.

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.

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.

Yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat -- i.e., a significant risk of substantial harm -- to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a "direct threat" by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

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 does not have a disability may accomplish the same function.

No. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of an individual with a disability protected by the ADA when the employer takes action on the basis of their drug use.

Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an 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 an individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

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.

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 of 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.

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.

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.

Employment discrimination is prohibited against 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 a major life activity, 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.  There are two non-exhaustive lists 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.

Major life activities also 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.

Examples of specific impairments that should easily be concluded to be disabilities include: deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments, 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.

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.

Under the third part of the definition, a covered entity has regarded 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.

A qualified individual 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.

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.

Yes. Title II prohibits all public entities, regardless of the size of their work force, from discriminating in employment against individuals with disabilities. In addition to title II's employment coverage, title I of the ADA and section 504 of the Rehabilitation Act of 1973 prohibit employment discrimination against individuals with disabilities by certain public entities.

The title I employment provisions apply to private employers with 15 or more employees, state and local governments, employment agencies, labor unions, agents of the employer and joint management labor committees.

Education (1)

Both public and private colleges and universities must provide equal access to postsecondary education for students with disabilities. Title II of the ADA covers publicly-funded universities, community colleges and vocational schools. Title III of the ADA covers privately-funded schools.  All public or private schools that receive federal funding are required under Section 504 of the Rehabilitation Act to make their programs accessible to students with disabilities.

All the programs of postsecondary institutions, including extracurricular activities, must be accessible to students with disabilities. The schools can do this in several ways: by providing architectural access to buildings, including residential facilities; by providing aids and services necessary for effective communication, like sign language interpreters, Braille or electronic formats and assistive listening devices; and by modifying policies, practices and procedures, such as testing accommodations and access to school facilities for service animals.  Accommodations and program modifications should be individually designed to meet the needs of the student with a disability.

Accommodations and modifications of policies and practices are not required when it would fundamentally alter the nature of the service, program, or activity or give rise to an undue financial or administrative burden.

Postsecondary institutions often have an office that coordinates accommodations for students with disabilities.  The student should notify the appropriate institutional office well in advance of the needed modification or accommodation.  Technical guidance is available through the ADA National Network at 1-800-949-4232. For more information please visit:

“Readily achievable” means "easily accomplished without much difficulty or expense." The obligation for barrier removal is ongoing, which means a business must continue to evaluate existing barriers to determine if the barrier removal is readily achievable. In order to identify barriers in a facility, a business or non-profit should conduct an accessibility evaluation.

Determining what is “readily achievable” is made by each business on a case-by-case-basis based on the size and resources of the business. First, facilities should be assessed to determine what architectural barriers exist. Second, the costs of barrier removal should be documented and barrier removal priorities and timelines established. Third, this information can be used to create a "barrier removal plan."  For more information on barrier removal for small businesses, go to: http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm.

Further technical assistance is available through the ADA National Network at 1-800-949-4232.

Businesses doing alterations to improve accessibility are eligible for two federal tax incentives.  The Disabled Access Credit (Internal Revenue Code, Section 44) is available to help small businesses cover ADA-related eligible access expenditures. A small business is one that had either revenues of $1,000,000 or less or 30 or fewer full-time workers in the previous tax year. The credit can be taken to: (1) remove barriers that prevent a business from being accessible to or usable by individuals with disabilities; (2) provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals; (3) provide qualified readers, taped texts, and other methods of making visual materials available to individuals with visual impairments; and (4) acquire or modify equipment or devices for individuals with disabilities. The credit cannot be taken for the costs of new construction or planned alterations/renovations. The amount of the tax credit is equal to 50% of the eligible access expenditures in a year, up to a maximum expenditure of $10,250. There is no credit for the first $250 of expenditures. The maximum tax credit is $5,000.

A business of any size can take a tax deduction under Internal Revenue Code - Section 190 for the costs of removing architectural or transportation barriers. Businesses can also take a business expense deduction of up to $15,000 per year for costs of removing barriers in facilities or vehicles. These two incentives can be used together by eligible businesses if the expenditures qualify.

Technical guidance is available through the ADA National Network at 1-800-949-4232.

Medicare, Medicaid, private health or disability insurance, and Worker’s Compensation may pay for some assistive technology. Funding sources often require a statement of medical necessity for the product or equipment and a prescription from a doctor or other health professional. Public educational institutions may have funding for assistive technologies needed to meet educational goals.  State vocational rehabilitation agencies may provide assistive technology for their clients when it is needed to achieve vocational goals.  Many states have programs to provide adaptive telecommunications equipment for deaf and hard of hearing individuals and others who need adaptive equipment for telecommunications.  For more information about funding assistive technology, contact your state’s Assistive Technology Act Program.  A list of these programs can be found at http://assistivetech.net/webresources/stateTechActProjects.php.

For home modifications, such as installing ramps or renovating bathrooms, funds may be available through vocational rehabilitation agencies, local independent living centers, and local volunteer organizations that offer labor or materials for construction.  To find contact information for your local center for independent living visit http://www.ilru.org/.

Veterans with disabilities may receive assistance for improvements necessary to make a home and essential lavatory and sanitary facilities accessible under the Home Improvements and Structural Alterations (HISA) program. A HISA grant from the U.S. Department of Veterans Affairs is available to Veterans who have received a medical determination indicating that improvements and structural alterations are necessary or appropriate for the effective treatment of his/her disability. The HISA program is available for both service-connected Veterans and non-service-connected Veterans.

Home improvement benefits up to $6,800 may be provided for a:

  • service-connected condition
  • non-service-connected condition of a Veteran rated 50 percent or more service-connected

Home improvement benefits up to $2,000 may be provided to all other Veterans registered in the VA health care system. The prosthetics department of the VA may also donate lifting equipment such as chairlifts or vertical porch lifts.  To learn more about the program, visit http://www.prosthetics.va.gov/HISA2.asp.

Both tenants and landlords have obligations to ensure that facilities and operations are ADA compliant.  The lease may indicate how barrier removal responsibilities are shared but it is important to remember that the lease does not relieve either tenant or landlord from their individual obligations to comply with the ADA. 

The ideal time to address this issue is when you are leasing new space or renewing a lease.  A tenant should request that the landlord agree in the lease to modify those areas which are under the exclusive control of the landlord, such as parking, sidewalks, entrances, and rest rooms.  If the lease specifies that the tenant has control over these areas, then the tenant should request that a provision be added to the lease so that the tenant can make those alterations needed to comply with barrier removal requirements.

The ADA does not have a provision to "grandfather" a facility but it does have a provision called “safe harbor” in the revised ADA regulations for businesses and state and local governments. A "safe harbor" means that you do not have to make modifications to elements in an existing building that comply with the 1991 Standards, even if the new 2010 Standards have different requirements for them. This provision is applied on an element-by-element basis.  However, if you choose to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies so the altered elements must comply with the 2010 ADA Standards.

A “safe harbor” does not apply to elements that were NOT addressed in the original 1991 Standards but ARE addressed in the 2010 ADA Standards. These elements include recreation facilities such as swimming pools, play areas, exercise machines, miniature golf facilities, and bowling alleys. On or after March 15, 2012, public accommodations must remove architectural barriers to these elements listed above are subject to the new requirements in the 2010 Standards when it is readily achievable to do so.

No. You cannot ask or require an individual with a disability to pay maintenance or cleaning fees, even if people with pets are required to pay these fees.  Service animals are not pets.  If you normally charge individuals for the damage they cause, you may charge an individual with a disability for damages caused by his or her service animal.  Service animals must be housebroken and under the control of the owner at all times. 

The Department of Justice (DOJ) issued newly revised ADA regulations which began taking effect in March, 2011 and impacted entities covered by Title II and Title III. March 15, 2012 marked the compliance date for provisions governing the 2010 ADA Standards for new construction, alterations, program accessibility, and barrier removal.

On or after March 15th, 2012 all newly constructed or altered facilities must comply with the requirements in the 2010 Standards. If elements in existing facilities already comply with the 1991 Standards and are not being altered, entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

For title II entities, if the start date for construction is on or after March 15, 2012, all newly constructed or altered State and local government facilities must comply with the 2010 ADA Standards.

For businesses that are covered under title III, the compliance date for the 2010 ADA Standards for new construction and alterations is determined by:

  • the date the last application for a building permit or permit extension is certified to be complete by a State, county, or local government;
  • the date the last application for a building permit or permit extension is received by a State, county, or local government, where the government does not certify the completion of applications; or 
  • the start date of physical construction or alteration, if no permit is required. 

If that date is on or after March 15, 2012, then new construction and alterations must comply with the 2010 ADA Standards

Further information can be found in the U.S. Department of Justice publication “Effective Date – Compliance Date” at http://www.ada.gov/revised_effective_dates-2010.htm.

The 2010 ADA Standards for Accessible Design can be found at: http://www.ada.gov/2010ADAstandards_index.htm

The Department of Justice’s ADA web site, www.ada.gov, contains a number of useful documents on accessibility for businesses and state and local governments. For example, for businesses see “ADA Update: A Primer for Small Business” and the section on “Making the Built Environment More Accessible” at: http://www.ada.gov/regs2010/smallbusiness/smallbusprimer2010.htm.   

The U.S. Access Board also produces a number of documents on a wide range of accessibility-related topics which can be found at: www.access-board.gov.  For example, check “Guide to Updated ADA Standards” at: http://web.archive.org/web/20130721160340/http://access-board.gov//ada/guide.htm

Effective March 15, 2012, the applicable standards for new construction and alterations for either a public entity under Title II or a place of public accommodation under Title III are the 2010 ADA Standards for Accessible Design.   The 2010 ADA Standards can be found at: http://www.ada.gov/2010ADAstandards_index.htm

No, as of March 15, 2012, the applicable standards for alterations and additions are the 2010 ADA Standards for Accessible Design.   The 2010 ADA Standards can be found at: http://www.ada.gov/2010ADAstandards_index.htm.  

It is important to remember that the 1991 Standards are still relevant after March 15, 2012. Elements not altered after March 15, 2012 that comply with the requirements for those elements in the 1991 Standards, do not need to be modified, even if the new standards have different requirements for these elements.  This provision is called “Safe Harbor.”  However, if your business chooses to alter elements that were in compliance with the 1991 Standards, the safe harbor no longer applies to the altered elements which must now comply with the 2010 ADA Standards.

In a situation where the requirements of both a state or local building code and the 2010 ADA Standards need to be simultaneously considered, the code or Standard which results in greater accessibility takes precedence.  This interpretation is based on the concept of “equivalent facilitation” from section 103 of the 2010 ADA Standards which states that alternative standards for the use of designs, products, or technologies can be used as long as they result in substantially equivalent or greater accessibility and usability.  Thus, a state or local code can be used if it contains a requirement that provides a different but greater level of accessibility than the 2010 ADA Standards. 

If the use of a state or local code instead of the 2010 ADA Standard is challenged, the covered entity is responsible for defending the use of this code.  The ADA accessibility requirements do not supplant or replace State or local laws that impose higher accessibility standards. The governing principal to follow when Federal, State, or local codes differ is that the more stringent requirement applies.

If the existing accessible parking spaces are in compliance with the 1991 ADA Standards, then the “safe harbor” provision applies and you do not have to make modifications to the accessible parking spaces even though the new 2010 ADA Standards have a few different requirements.  However, if your business chooses to alter the parking spaces, the safe harbor no longer applies and your accessible parking must comply with the 2010 ADA Standards.

For example: A business’ parking lot has a total of 250 parking spaces and, as required in the 1991 Standards, the lot includes seven accessible parking spaces, one of which is van-accessible. The 2010 Standards now require two van-accessible spaces even though the total minimum number of accessible spaces remains at seven.  The business does not have to modify its parking lot to provide the additional van-accessible space until the lot undergoes a planned alteration (re-striping, re-surfacing, etc.). 

If the existing accessible parking spaces are not in compliance with the 1991 ADA Standards, you must construct or alter accessible parking spaces in compliance with the 2010 ADA Standards if it is readily achievable to do so.

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 is 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.

The U.S. Department of Justice issued revised Americans with Disabilities Act (ADA) regulations that took effect on March 15, 2011.  Under the revised ADA, public and commercial facilities such as restaurants, hotels, retail stores, taxicabs, theaters, concert halls, and sports facilities must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

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.

Structural changes needed for program accessibility must be made as expeditiously as possible, and should have been made by January 26, 1995. This three-year time period was 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.

Businesses are not required to retrofit their facilities to install elevators unless such installation is readily achievable, which is unlikely in most cases.

Yes. Barrier removal needs to be accomplished only when it is "readily achievable" to do so.

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.

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.

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.

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. The 2010 ADA Standards for Accessible Design set minimum requirements – both scoping and technical -- for newly designed and constructed or altered public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities.

Places of public accommodations and commercial facilities should use the 2010 ADA Standards for Accessible Design for readily achievable barrier removal, new construction and alterations. 

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.

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.

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.

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.

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.

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.

A State or local government will be in compliance with the ADA for new construction and alterations if it follows the 2010 ADA Standards for Accessible Design. Effective March 15, 2012 the 2010 ADA Standards must be used for new construction and alterations undertaken by state and local governments.

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.

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.

Actually, what you might have heard called the “new ADA” is really called The ADA Amendments Act – or the ADAAA. After the ADA was originally passed in 1990, cases started being filed and ending up in courts. Some were appealed all the way to the U.S. Supreme Court. Rulings by the Supreme Court, as well as lower courts, began to narrow the definition of disability. Whether a person had a disability in order to sue became the focus of most disputes under the ADA. Congress never intended for it to be that way. The focus of the ADA was supposed to be on access and accommodation, not on whether the person really had a disability. Congress had not foreseen the ways in which the courts would narrowly interpret, and ultimately change, the definition.

So the ADAAA was passed in 2008 and essentially overturned those Supreme Court cases that narrowed the definition of disability. Congress made clear that the definition must be “construed in favor of broad coverage of individuals” with disabilities. So rather than this being a “new ADA,” it really is just going back to the way Congress meant the ADA to be when it was first written and passed in 1990.

“Record of” means that the person has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities, even though the person does not currently have a disability.

“Regarded as” means that the person either:

  • Has an impairment that does not substantially limit a major life activity;
  • Has an impairment that substantially limits a major life activity only as a result of the attitudes of others toward them; or
  • Does not have any impairment, but is treated by an entity as having an impairment.

Yes. A woman applies for a job as a customer service representative at a department store. Her face is badly scarred from an automobile accident. The interviewer doesn’t want to give her the job, in spite of her skills and experience, because he thinks customers will be uncomfortable looking at her. She is not substantially limited in any major life activity, but the interviewer is “regarding her as” if she has a disability.

I’ll give you the “lawyer answer” – it depends. All people who meet the ADA definition of disability are covered by the ADA in general, but they still may not have rights under particular sections of the ADA. For example, there is a section of the ADA that deals only with employment discrimination. If a person with a disability is not employed and is not seeking employment, then that person would not necessarily be covered by that part of the ADA, although the person would be covered by other parts of the ADA.

According to the Survey of Income and Program Participation (SIPP) data, approximately 54 million Americans have a disability.

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Some parts of the ADA didn’t go into effect until after that date to give entities time to comply with the law, but those compliance deadlines have passed.

Yes, the ADA definition of disability includes mental, as well as physical, impairments.

The ADA is a comprehensive civil rights law. It prohibits discrimination on the basis of disability in employment, state and local government programs, public accommodations, commercial facilities, transportation, and telecommunications.

It is important to remember that in the context of the ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.

The ADA is divided into five sections called “titles.” Each title covers a different area. Title I covers employment. Title II covers state and local government programs. Title III covers places of public accommodation. Title IV covers telecommunications. Title V has several miscellaneous provisions that cover things like retaliation and attorney fees.

Major life activities are those functions that are important to most people’s daily lives. Examples of major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working. Major life activities also include major bodily functions such as immune system functions, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities, the regulations implementing the ADA Amendments Act of 2008 provide the ‘nine rules of construction’ to help determine what impairments constitute a disability. By applying those rules, the regulations state there will be some impairments that virtually always constitute a disability. The regulations also provide a list of examples of impairments that should easily be concluded to be disabilities.  Included in this list of examples are deafness, intellectual disability, autism, epilepsy, diabetes, cancer, HIV infection, multiple sclerosis, muscular dystrophy, cerebral palsy, mobility impairments requiring the use of a wheelchair, post-traumatic stress disorder, major depressive disorder, schizophrenia and bipolar disorder.

Sources: EEOC Final Rule Implementing the ADA Amendments Act of 2008 and Fact Sheet on the EEOC’s Final Regulations Implementing the ADAAA.   Links to these documents can be found at: http://www.eeoc.gov/laws/regulations/index.cfm.

The miniature horse is not included in the definition of service animal, which is limited to dogs. However, the new ADA regulations contain a specific provision which covers miniature horses.  Businesses must make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.  

Factors to assist in determining whether miniature horses can be accommodated are whether:

  • the miniature horse is housebroken
  • the miniature horse is under the owner’s control
  • the facility can accommodate the miniature horse’s type, size, and weight
  • the miniature horse’s presence will not compromise legitimate safety requirements necessary for the safe operation of the facility

You may ask an individual with a disability to remove a service animal from the premises (facility) if the animal is not housebroken or if the animal is out of control and the individual does not take effective action to control it.  Unwarranted and unprovoked violent behavior, such as uncontrolled barking, growling at other customers, jumping on other people, or running away from the owner are examples of unacceptable behavior.

The owner must use a harness, leash or other tether with his or her service animal unless the individual is unable to do so because of a disability or the use of these would make it difficult or unsafe for the service animal to perform tasks.  When a harness, leash or other tether are not being used, the service animal must be under the owner’s control through voice control, signals, or other effective means. 

If a service animal is removed from the premises, the individual with a disability must still be offered the opportunity to obtain goods, services, and accommodations.

The Regional ADA Centers do not provide direct attorney referrals.  The National Disability Rights Network (NDRN) is the nonprofit membership organization for the federally mandated Protection and Advocacy (P&A) Systems and Client Assistance Programs (CAP).  There is a P&A/CAP agency in every state and U.S. territory as well as one serving the Native American population in the four corners region.  Collectively, the P&A/CAP network is the largest provider of legally based advocacy services to people with disabilities in the United States.  To find your local Protection and Advocacy agency and Client Assistance Program in each state, go to - http://www.ndrn.org/en/ndrn-member-agencies.html

Your state or local bar association may also provide a good starting point in the search for legal advice or representation.  To find your local bar association, go to http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm, or call 1-800-285-2221

Beginning on March 15, 2011, only dogs are recognized as service animals under Titles II and III of the ADA. A service animal is a dog that is individually trained to do work or perform tasks directly related to the person’s disability.  A service animal is NOT a pet.

Examples include:

  • guiding a person who is blind
  • alerting a person who is deaf when a sound occurs
  • pulling a wheelchair
  • alerting and protecting a person who is having a seizure
  • alerting individuals to the presence of allergens
  • providing physical support and assistance with balance and stability
  • helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors
  • providing a safety check or a room search for a person with Post Traumatic Stress Disorder (PTSD)

An animal that provides only emotional support, crime prevention, comfort or companionship is NOT considered to be a service animal because it is not trained to perform specific tasks associated with a person’s disability.

To determine if an animal is a service animal, you may ask two questions:  

1) Is the dog a service animal required because of a disability?

2) What work or task has the dog been trained to  perform? 

You may not ask these questions if the need for the service animal is obvious. Examples include when a dog is guiding an individual who is blind or is pulling a person’s wheelchair. You also may not:

  • ask about the nature or extent of an individual’s disability 
  • require proof that the animal has been certified, trained or licensed as a service animal
  • require the animal to wear an identifying vest or tag
  • ask that the dog demonstrate its ability to perform the task or work

Under the ADA, it is the training that distinguishes a service animal from other animals.  Some service animals are professionally trained; others are trained by their owners.  However, the task that the service animal is trained to do must be directly related to the owner’s disability.

Service animals in-training are not specifically addressed in the ADA.  However, some state laws may afford service animals in-training the same protections as service animals that have completed their training.

An OPDMD is any mobility device powered by batteries, fuel, or other engines that is used by individuals with mobility disabilities for the purpose of locomotion, whether or not it was designed primarily for use by individuals with mobility disabilities. OPDMDs may include golf cars, electronic personal assistance mobility devices, such as the Segway® Personal Transporter (PT), or any mobility device that is not a wheelchair, which is designed to operate in areas without defined pedestrian routes. Covered entities must make reasonable modifications in their policies, practices, or procedures to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate that the class of OPDMDs cannot be operated in accordance with legitimate safety requirements adopted by the entity.

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.

It means "easily accomplishable and able to be carried out without much difficulty or expense."

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 disability 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.

Businesses doing alterations to improve accessibility are eligible for two federal tax incentives.  The Disabled Access Credit (Internal Revenue Code, Section 44) is available to help small businesses cover ADA-related eligible access expenditures. A small business is one that had either revenues of $1,000,000 or less or 30 or fewer full-time workers in the previous tax year. The credit can be taken to: (1) remove barriers that prevent a business from being accessible to or usable by individuals with disabilities; (2) provide qualified interpreters or other methods of making audio materials available to hearing-impaired individuals; (3) provide qualified readers, taped texts, and other methods of making visual materials available to individuals with visual impairments; and (4) acquire or modify equipment or devices for individuals with disabilities. The credit cannot be taken for the costs of new construction or planned alterations/renovations. The amount of the tax credit is equal to 50% of the eligible access expenditures in a year, up to a maximum expenditure of $10,250. There is no credit for the first $250 of expenditures. The maximum tax credit is $5,000.

A business of any size can take a tax deduction under Internal Revenue Code - Section 190 for the costs of removing architectural or transportation barriers. Businesses can also take a business expense deduction of up to $15,000 per year for costs of removing barriers in facilities or vehicles. These two incentives can be used together by eligible businesses if the expenditures qualify.

Technical guidance is available through the ADA National Network at 1-800-949-4232.

If you feel that you or another person has been discriminated against by an entity covered by either Title II or III of the ADA, you may file a complaint with the U.S. Department of Justice, Disability Rights Section. Title II covers state and local government entities and Title III public accommodations and commercial facilities.  Public accommodations are businesses that provide goods or services for the public. 

Complaints concerning discrimination in employment, often referred to as Title I complaints, should be addressed by the U.S. Equal Employment Opportunity Commission (EEOC) and/or the agency responsible for enforcing state laws against employment discrimination.  The EEOC process for filing a charge of employment discrimination may be found at: http://www.eeoc.gov/employees/howtofile.cfm.

Title II and III complaints may be sent by e-mail. Since letters and packages sent to the Disability Rights Section by U.S. Mail or other delivery service are delayed for security screening, using e-mail is the quickest way of filing a complaint. E-mail complaints also receive an immediate reply confirming that they have been received. Remember that there can be no guarantee of privacy when you send an e-mail.

The most important part of filing a Title II and III complaint is ensuring that you provide the Department of Justice with the following information:

  • Your full name, address, email, the telephone numbers where we can reach you during the day and evening, and the name of the party discriminated against (if known);
  • The name and address of the business, organization, institution, or person that you believe has discriminated;
  • A brief description of the acts of discrimination, the dates they occurred, and the names of individuals involved;
  • Other information that you believe necessary to support your complaint, including copies of relevant documents (not originals); and
  • Provide the Department of Justice with the information needed to ensure that they communicate with you effectively. Please let the Department know if you need to receive written communications in a specific format, such as large print, Braille, e-mail, or audio recording, or if you need to receive oral communications by video phone or TTY.

To ensure that all necessary information is provided, you may use this ADA Title II complaint form (http://www.ada.gov/t2cmpfrm.htm), which can be used for any Title II or III ADA complaint.  Additional advice and instructions for filing a Title III complaint can be found at: http://www.ada.gov/t3compfm.htm.

Include all of the information listed above, either in the body of the email or in an attachment to your e-mail. Please attach any relevant documents to your e-mail.

Send your complaint to the following e-mail address: ada.complaint@usdoj.gov.

You will receive an automatic reply e-mail confirming that your complaint has been received. Please keep a copy of your complaint and the reply e-mail for your records. If you do not receive a reply email, you may have sent your complaint to the wrong e-mail address.

The Department of Justice, Disability Rights Section accepts complaints sent by regular mail but receiving the complaints may be delayed by 4 - 6 weeks because of necessary security screening precautions. To file a complaint using U.S. Postal Service or by any other parcel delivery service, send your completed complaint form (http://www.ada.gov/t2cmpfrm.htm) or a signed letter containing the information and documents described above to the following address:

U.S. Department of Justice
Civil Rights Division
Disability Rights Section - NYAV
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

Keep a copy of your complaint. Send copies (not originals) of relevant documents. The security screening process can damage documents sent to the Department of Justice, so please keep original documents for your own records.

Source: Frequently Asked Questions about Filing an ADA Complaint with the U.S. Department of Justice - http://www.ada.gov/fact_on_complaint.htm

No. The care or supervision of a service animal is solely the responsibility of the owner. You are not required to provide care or food or a special location for the animal. 

Yes.  A business has the right to deny access to a service animal that disrupts their business.   For example, a service dog that barks and disrupts another patron’s enjoyment of a movie could be asked to leave.   Also, businesses, airlines, public programs and transportation providers may exclude a service animal when the animal’s behavior poses a direct threat to the health or safety of others.  However, some animals may be trained to whine or bark as part of doing their job.

A decision to exclude a service animal cannot be based on the notion that an animal might threaten the safety of others. It also cannot be based on a business person’s assumptions or bad experiences with other animals.  Each service animal must be considered individually.

Yes. Even if the business or a public program has a “no pets” policy, it may not deny entry to a person with a service animal.  Service animals are working animals, not pets. So, although a “no pets” policy is perfectly legal, it does not allow a business to exclude service animals.

The U.S. Department of Justice issued revised Americans with Disabilities Act (ADA) regulations that took effect on March 15, 2011.  Under the revised ADA, public and commercial facilities such as restaurants, hotels, retail stores, taxicabs, theaters, concert halls, and sports facilities must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

Individuals with disabilities are allowed to be accompanied by their service animals in all areas of public facilities and private businesses where members of the public are allowed to go. An individual with a service animal may not be segregated from other customers.  If a service animal’s presence compromises safety or is disruptive to the purpose of the business, they can be excluded from a specific facility such as a surgery or intensive care unit in a hospital in which a sterile field is required.

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals.  If it is possible, separate the person with the allergy or other animal aversions from the person with a service animal.

Yes. If a criterion screens out or tends to screen out individuals with disabilities, it may only be used if necessary for the provision of the services. For instance, it would be a violation for a retail store to have a rule excluding all deaf persons from entering the premises, or for a movie theater to exclude all individuals with cerebral palsy. More subtle forms of discrimination are also prohibited. For example, requiring presentation of a driver's license as the sole acceptable means of identification for purposes of paying by check could constitute discrimination against individuals with vision impairments. This would be true if such individuals are ineligible to receive licenses and the use of an alternative means of identification is feasible.

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.

Generally no, as long as a restaurant has waiters or waitresses that are qualified to read menus or retail stores have sales staff that are qualified to read sales tags to blind customers.

Generally no, not if employees are able to communicate by using pen and notepad and it is effective.  However, in situations where the exchange of information is over a long duration or the information being exchanged is complex it may be necessary for the business to provide a qualified interpreter. A business should discuss with the person with the disability to determine which auxiliary aid or service will result in effective communication.

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.

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.

In general, the revised regulations published by the U.S. Department of Justice on September 15, 2010 covering places of public accommodation and commercial facilities, became effective on March 15, 2011.  The section of the revised regulations covering hotel reservation systems became effective on March 15, 2012.

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 case law under section 504 of the Rehabilitation Act and are to be determined on a case-by-case basis.

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.

No, only readily achievable alternative steps must be undertaken.

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.

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 or practice" of discrimination is alleged. In these cases, the Attorney General may seek monetary damages and civil penalties. Civil penalties may not exceed $55,000 for a first violation or $110,000 for any subsequent violation.

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.

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)).

Yes.  Any service animal and their owner must be allowed to access those areas of a restaurant where customers are allowed to go.  Whenever a public health ordinance, or other local law, is different from the ADA, the law which is least restrictive for the person with a disability takes priority.  

There are two types of accessible guest rooms, one type having “mobility features” and the other “communication features.”   The minimum number of accessible guest rooms in newly constructed facilities is provided in Tables 224.2 (mobility features) and 224.4 (communication features) of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.  Note that for rooms with mobility features, roll-in showers will be required where the total number of guest rooms provided exceeds 50. 

In alterations and additions, the minimum required number of accessible guest rooms required is based on the total number of guest rooms being altered or added instead of the total number of guest rooms provided in a facility. Note, that where guest rooms are altered, or added, the technical requirements stated in the 2010 ADA Standards apply only to those guest rooms being altered or added until the total number of accessible guest rooms in the entire hotel complies with the minimum number required for new construction as stated in the tables referred to above.

Accessible guest rooms must be dispersed among the various classes of guest rooms, and provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. Typically, each alteration of a facility is limited to a particular portion of the facility. As accessible guest rooms are added as a result of subsequent alterations, the required degree of dispersion is more likely to be achieved if all of the accessible guest rooms are not provided in the same portion of the facility. 

Source: Section 224.1.1, and accompanying Advisory, of the 2010 ADA Standards for Accessible Design - http://www.ada.gov/2010ADAstandards_index.htm.

Yes.  A business has the right to deny access to a service animal that disrupts their business.   For example, a service dog that barks and disrupts another patron’s enjoyment of a movie could be asked to leave.   Also, businesses, airlines, public programs and transportation providers may exclude a service animal when the animal’s behavior poses a direct threat to the health or safety of others.  However, some animals may be trained to whine or bark as part of doing their job.

A decision to exclude a service animal cannot be based on the notion that an animal might threaten the safety of others. It also cannot be based on a business person’s assumptions or bad experiences with other animals.  Each service animal must be considered individually.

Yes. Even if the business or a public program has a “no pets” policy, it may not deny entry to a person with a service animal.  Service animals are working animals, not pets. So, although a “no pets” policy is perfectly legal, it does not allow a business to exclude service animals.

In general, the revised regulations published by the U.S. Department of Justice on September 15, 2010 covering places of public accommodation and commercial facilities, became effective on March 15, 2011.  The section of the revised regulations covering hotel reservation systems became effective on March 15, 2012.