ADA & A.T.: What The Final Regulations Say (TITLE I) By Robert R. Williams _________________________________________________________________ This article is reprinted from the A.T. Quarterly, Volume 2, Number 6 (1991). As required by the law, the U.S. Department of Justice and the Equal Employment Opportunity Commission published final regulations on the Americans with Disabilities Act (ADA) (P.L. 101-336) in the July 26 Federal Register. This summarizes the major requirements in EEOC's final regulations relating to the use of assistive technology by individuals with disabilities in the workplace and suggest A.T. Action Steps for ensuring that these key provisions are carried out in an effective manner. Future columns will do the same with regards to rules issued to implement Titles II, III and IV of the ADA as well. Under Title I of the ADA, the Equal Employment Opportunity Commission is responsible for developing and enforcing final regulations to prohibit discrimination in all aspect of employment, including the recruitment, interviewing, hiring, promotion or discharge of anyone who is a qualified individual with a disability. The regulations will apply to all businesses with 15 or more employees and will be phased in over a four year period. For firms with 25 or more employees, they will take effect on July 26, 1992. Businesses with 15 or more employees will have to begin to comply with them on July 26, 1994. In issuing final rules, the EEOC also published an extensive "interpretative guidance" analysis, which explains each of the provisions in detail. Key aspects of both are highlighted below. Qualified Individual with a Disability: The rules define this to mean anyone with a disability who meets the requisite skill, experience, education, and other work-related requirements of a job with or without reasonable accommodation. Essential Functions: This term means the fundamental or critical duties of a particular job. In order to be considered a qualified individual with a disability, a person must be able to perform the essential functions of the job with or without reasonable accommodation. The individual does not necessarily have to be able to perform other more "marginal functions" of a position (i.e., those less central to a job) so long as he/she can carry out its essential functions. Reasonable Accommodation and Not Making Reasonable Accommodation: A reasonable accommodation can include but is not limited to: "Making existing facilities readily accessible to and usable by employees with disabilities; job restructuring, part-time or modified work schedules; reassignment to a vacant position; the acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations, training materials or policies; the provision of qualified readers or interpreters; and other reasonable accommodations for individuals with disabilities." A.T. Action Step: Make employers and those with disabilities aware that assistive technology can play a critical role in carrying out each of these job accommodation. Assistive Technology: Section 1630.2(o) of the rules clearly indicates that providing a reasonable accommodation to a job applicant or an employee with a disability may involve "the acquisition or modification of equipment or devices." It also emphasizes that such accommodation may have to be afforded to an individual both during the application process as well as once the person has been hired. Unfortunately, neither the rules nor, the interpretative guidelines provide examples of how different types of assistive technology can be used to provide reasonable accommodation to a job applicant or an employee with a disability in a wide variety of cost-effective ways. A.T. Action Step: Provide employers with effective examples of how the purchase or adaptation of work equipment can make it much more possible, practical and simply easier for those with disabilities to get the job done. It is critical that individuals with disabilities, state systems change projects and others all take up this initiative. Making Existing Facilities Accessible: The final rules require that, unless it would cause an undue burden to do so, employers must make existing facilities accessible to an employee with a disability. The interpretative guidance also points out that, unless it would pose an undue burden, existing non-work areas (e.g., restrooms, staff lounges, dining and training rooms) must be made accessible as a reasonable accommodation as well. A.T. Action Step: Make employers aware of the variety of ways in which A.T. can be used to make their workplaces accessible. Direct Threat: The rules indicate that businesses do not have to hire or employ a person with a disability who poses a direct threat, i.e., "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated by a reasonable accommodation." The EEOC emphasizes that the determination of whether someone with a disability poses a direct threat must be done on an individual and objective basis and must not be based on paternalism, stereotypes or concerns about increased costs. A.T. Action Step: As in other areas, a great deal can and must be done to inform individuals with disabilities and employers of the vital role that assistive technology can play in ameliorating unnecessary risks to workers. Undue Burden: This term means that providing an accommodation would result in the employer having to incur "significant difficulty or expense" to do so. Factors to be considered include: 1. the nature and net cost of the needed accommodation, minus any available tax credits, deductions and outside funding; 2. the overall size and financial resources of the employer's entire business; 3. the overall size and financial resources of the actual work facility that the person with a disability would be working; and, 4. the impact that the accommodation would have on the operations of the business and its other employees. However, even when a firm can show that providing an accommodation would pose an undue burden for it to do in its entirety, the business must be open to sharing the costs of doing so with the person with a disability and/or an outside funding agency. Thus, if a person needs a series of job accommodations costing $5,000 and a firm could only afford to pay $2,500 without incurring an undue burden, it has to pay at least this much of the costs; the individual or others can cover the remaining expenses. A.T. Action Step: Open up new job opportunities for persons with significant disabilities by developing effective job accommodations, cost sharing strategies and disseminating them as widely as possible. ---------- ADA & A.T.: _________________________________________________________________ What The Final Regulations Say (Title II) By Robert R. Williams _________________________________________________________________ This article is reprinted from the A.T. Quarterly, Volume 3, Number 1 (1992) In the last A.T. Quarterly, we summarized the major requirements in the Americans with Disabilities Act's (ADA) Title I final regulations relating to the use of assistive technology by individuals with disabilities on the job [see ADA & AT: What the Final Regulations Say (Title I) ]. This will do the same for Title II Public Services provisions of the ADA and suggest assistive technology (AT) action steps for carrying out these key provisions effectively. TITLE II - PUBLIC SERVICES The U.S. Department of Justice's (DOJ) ADA Title II public services rules prohibit discrimination on the basis of disability in all state and local public services by extending the nondiscrimination mandates of Section 504 to all state and local government public services entities regardless of whether they receive federal funds. The rules took effect on January 26, 1992. Auxiliary Aids & Services: This term is an important one and is defined as including "a wide range of services and devices (necessary) for ensuring that equally effective communication" takes place with regard to persons with hearing, speech, and vision disabilities. It also contains a list of what these aids and services could include. However, the rules' guidelines points out that this is meant to be an illustrative rather than an "all inclusive or exhaustive catalogue" of what is possible. The definition is meant to include state of the art devices and emerging technology. But state and local public services "are not required to use the newest or most advanced technologies as long as the auxiliary aid or service that is selected affords effective communication." The definition also indicates that auxiliary aids and services can include "the acquisition or modification of equipment or devices" or "other similar services and actions," which might be required in order to afford someone with a hearing, speech, or vision disability with an "equally effective" opportunity to communicate with others in all aspects of state and local services. While most of the aids and services listed in the definition are ones which benefit those with hearing or vision disabilities, this and other provisions related to equally effective communication are extremely vital and directly applicable to individuals with speech disabilities of all ages as well. A.T. Action Step: Offer information and assistance on ways in which a wide range of assistive technology can be used by state and local public services to effectively communicate with individuals with hearing, speech and vision disabilities. Remind states of their related obligation to purchase accessible electronic work equipment under Section 508 of the Rehabilitation Act as well. DOJ does not view the use of some forms of emerging technology (e.g., voice recognition systems, automatic dialing telephones, infrared and other light control systems) as auxiliary aids or services needed for effective communication. But it does suggest that these devices might be viewed as a means of "making services, programs or activities accessible to, or usable by, individuals with mobility or manual dexterity impairments." A.T. Action Step: Provide state and public services with practical, cost-effective examples of ways in which a wide range of assistive technology can be used in this manner. A possible example might include using voice recognition to activate a computerized public information service. Maintenance of Accessible Features: This section requires an entity to maintain in operable working condition accessibility features to the maximum extent feasible. This is important because it ties maintenance to access requirements. A.T. Action Step: Provide advice to state and local agencies on how to best maintain assistive devices and other accessibility features in top working condition. Program Accessibility - Existing Buildings: This section requires that an entity "operate each service, program or activity" so that "when viewed in its entirety, (it) is accessible to and usable by individuals with disabilities." Hence, an entity is not required to make all of its existing facilities barrier free. However, states and localities must make maximum efforts to achieve overall program accessibility, unless to do so would cause undue financial and administrative burdens. A.T. Action Step: Advise public services on using assistive technology to make existing facilities accessible to those with disabilities (e.g., using portable ramps or inexpensive elevettes to make the exterior or interior of an existing facility accessible). New Construction and Alterations: This section requires that each facility or part of a facility built on or after January 26, 1992, be designed and constructed to be readily accessible to and usable by individuals with disabilities. Those renovated on or after the same date also must be altered to be readily accessible. Historic properties renovated on or after January 26, 1992 are to be altered to be readily accessible to and usable by individuals with disabilities to the maximum extent feasible. A.T. Action Step: Share examples with public services on how assistive technology can be used to accomplish all three tasks (e.g., using infrared and/or voice-recognition in new or renovated buildings to permit easy access to elevators or telescopic devices to permit the viewing of historic landmarks that otherwise might be inaccessible to most). Communications: This section requires public services "ensure that communications with applicants, participants and members of the public with disabilities are as effective as communications with others." As noted previously, it also requires public services to furnish auxiliary aids and services to persons with hearing, speech, and vision disabilities to ensure them an equally effective opportunity to communicate with others. In determining what kind of auxiliary aid and service is needed, the entity must "give primary consideration to the requests to have TTD's or equally effective telecommunications systems" to converse with applicants and beneficiaries with hearing and speech disabilities. Similarly, telephone emergency services-including 911 lines-must provide direct access to persons who use TTDs and computer modems. A.T. Action Step: Make public services aware of how assistive technology can be best used to comply with this key requirement. Stress that universal communication access design is a critical concern of people with varying disabilities and all ages. ---------- ADA & A.T.: What The Final Title III Regulations Say By Robert R. Williams _________________________________________________________________ This article is reprinted from the A.T. Quarterly, Volume 3, Number 2 (1992) In previous issues of the A.T. Quarterly, we summarized the major requirements in the Americans with Disabilities Act's Titles I and II final rules relating to the use of assistive technology by individuals with disabilities. This will do the same for Titles III Public Accomodations provisions of the law and suggest A.T. Action Steps for carrying them out effectively. The rules prohibit discrimination on the basis of disability in all places of public accomodations. These include such places of business as banks, stores, restuarants, theaters, day care centers, private schools, doctor and other professional offices and require: (1) All new places of public accomodations and commercial facilities be designed and constructed to be accessible; (2) Public accomodations take positive steps to eliminate discriminatory policies, practices and barriers (e.g., through providing auxiliary aids, modifying policies, barrier removal, etc.); and, (3) Courses and exams related to professional/trade certification or licensing be made accessible to persons with disabilities. These rules -- like the ones for Titles I and II of ADA -- took effect on January 26, 1992. Auxiliary Aids & Services: The Title III rules provisions regarding auxiliary aids and services parallel but are slightly different from those in the Title II rules discussed in the last ATQ. Therefore, like in the a prime purpose for a public accommodation to provide needed auxiliary aids and services is to ensure that equally effective communication takes place between persons with hearing, speech and vision disabilities and others. But it further indicate that "a public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently from other individuals because of the absence of auxiliary aids and services" unless doing so would pose an undue burden for it. A.T. Action Step: Offer information and assistance on ways in which a wide range of assistive technology can be used by public accomodations to effectively communicate with individuals with hearing, speech and vision disabilities. Department of Justice (DOJ) does not view the use of some forms of emerging technology (e.g., voice recognition systems, automatic dialing telephones, infrared and other light control systems) as auxiliary aids or services needed to for effective communication. But it does suggests that these devices might be viewed as a means of "making services, programs or activities accessible to, or usable by, individuals with mobility or manual dexterity impairments". A.T. Action Step: Provide public accomodations with practical, cost-effective examples of ways in which a wide range of assistive technology can be used in this manner. A possible example might include using voice recognition to activate a computerized public information service. Public accomodations are not required to provide auxiliary aids or devices that are primarily for the personal use of the individual with a disability. However, a public accommodation should provide an individual with a disability with an auxiliary aid or device that enable them to take advantage of or benefit from its services but might otherwise be considered primarily for their personal use. For example, a nonprofit literacy organization would not be required to purchase an communication device for one of its students who happens to have a speech or writing disability. But it would be required to lease such an communication device to enable that student to take advantage of or benefit from its services. A.T. Action Step: Provide advice to public accomodations on how assistive devices -- that may appear to be for personal use only -- can be leased to enable individuals with disabilities to take advantage of or benefit from their services. Maintenance of Accessible Features: This section requires an entity to maintain in operable working condition accessibility features to the maximum extent feasible. A.T. Action Step: Provide advice to public accomodations on how to best maintain assistive devices and other accessibility features in top working condition. Readily Achievable Access in Existing Buildings: A public accommodation must make its existing facilities barrier free when it is "readily achievable" to do so. Barrier removal is considered to be "readily achievable" when it can be easily accomplished without causing much difficulty or expense to the public accommodation. A.T. Action Step: Advise public accomodations on using assistive technology to make existing facilities accessible to those with disabilities (e.g., using portable ramps or inexpensive elevettes to make the exterior or interior of an existing facility accessible) without causing much difficulty or expense. New Construction and Alterations: This section requires that: 1. Each facility or part of a facility built on or after January 26, 1992 be designed and constructed to be readily accessible to and usable by individuals with disabilities. Those renovated on or after the same date also must be altered to be readily accessible. Historic properties renovated on or after January 26, 1992 are to be altered to be readily accessible to and usable by individuals with disabilities to the maximum extent feasible. A.T. Action Step: Share examples with public services on how AT can be used to accomplish all three tasks (e.g., using infrared and/or voice-recognition in new or renovated buildings to permit easy access to elevators or telescopic devices to permit the viewing of historic landmarks that otherwise might be inaccessible to most. _________________________________________________________________ The A.T. Quarterly was a newsletter developed by the RESNA TA Project under a contract with the National Institute on Disability and Rehabilitation Research (NIDRR), U.S. Department of Education (ED). The content, however, does not necessarily reflect the position or policy of NIDRR/ED and no official endorsement of the material should be inferred