The Catholic University of America

The Americans with Disabilities Act

 

Questions and Answers About the ADA and the Rehabilitation Act

 

Q. Is the university required to alter existing facilities built before the adoption of the ADA in 1990 in order to improve accessiblity for persons with disabilities?

 

 

  • Under the ADA, the university is not required to alter existing facilities built on or prior to January 26th 1992, if to do so is not "readily achievable," meaning easily accomplishable and able to be carried out without much difficulty or expense.
  • Where barrier removal is not readily achievable, the university is required to implement alternate means to make its programs and services accessible (to the extent such alternate means are readily achievable) and do so in the most integrated setting appropriate to the needs of the individual.
  • If the university determined that some alternate means of access in a building is not readily achievable, for any facility built before or or prior to January 26th, 1992 and for which the university undertakes an alteration or renovation in full or in part after that date, the alterations must make the facility accessible "to the maximum extent feasible" (e.g., make it accessible unless you'd have to remove load bearing walls or beams and fundamentally restructure the facility).

Q. What constitutes an alteration or renovation?

A. The rule triggering the maximum extent feasible standard under the ADA does not apply to minor changes such as wallpapering but any major change such as remodeling, renovation, rearrangement of structural parts or walls or full-height partitions requires compliance with accessibility requirements.

Further, where an alteration affects primary function areas, accessibility is required not only for that primary area but also to the maximum extent feasible to the path of travel serving that altered area, unless the cost of such alterations is disproportionate to the cost of the overall alteration (defined as costs exceeding 20% of the cost of the alteration to the primary function area).

Q. How do you determine what is readily achievable?

A. The regulations also provide a definition of "Readily achievable", namely that it means "easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include-

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

(4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Q. What are some examples of barrier removal?

The ADA regulations also provide some guidance regarding "removal of barriers,"as follows:

(a) General.A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.

(b) Examples. Examples of steps to remove barriers include, but are not limited to, the following actions-

(1) Installing ramps;

(2) Making curb cuts in sidewalks and entrances;

(3) Repositioning shelves;

(4) Rearranging tables, chairs, vending machines, display racks, and other furniture;

(5) Repositioning telephones;

(6) Adding raised markings on elevator control buttons;

(7) Installing flashing alarm lights;

(8) Widening doors;

(9) Installing offset hinges to widen doorways;

(10) Eliminating a turnstile or providing an alternative accessible path;

(11) Installing accessible door hardware;

(12) Installing grab bars in toilet stalls;

(13) Rearranging toilet partitions to increase maneuvering space;

(14) Insulating lavatory pipes under sinks to prevent burns;

(15) Installing a raised toilet seat;

(16) Installing a full-length bathroom mirror;

(17) Repositioning the paper towel dispenser in a bathroom;

(18) Creating designated accessible parking spaces;

(19) Installing an accessible paper cup dispenser at an existing inaccessible water fountain;

(20) Removing high pile, low density carpeting; or

(21) Installing vehicle hand controls.

 

 

The regulations further provide that if removal of barriers is not readily achievable, then the institution may take other readily achievable measures to remove the barrier that do not fully comply with the specified requirements. Such measures include, for example, providing a ramp with a steeper slope or widening a doorway to a narrower width than that mandated by the alterations requirements. No measure shall be taken, however, that poses a significant risk to the health or safety of individuals with disabilities or others.

Q: What about the Rehabilitation Act?

A: While the Rehab Act's standard for existing facilities is that they must be "readily accessible" (which in fact is the ADA standard for new construction and alterations), it is likely that this higher standard will not be deemed to apply in lieu of the ADA standard for existing facilities, that they need to be retrofitted only if such construction is "readily achievable."

Q: If we opt to make structural changes in providing program accessibility, are we required to follow a particular design standard in making those changes?

A. Yes. When making structural changes to achieve program accessibility, a school must make those changes in accordance with the standards for new construction and alterations under the Rehab Act and the ADA.

Q: Understanding that the university is not required to alter existing facilities if to do so is not "readily achievable" but it is required to implement alternate means which are readily achievable to make its programs and services accessible, are there any limitations on the program accessibility requirement?

A: Yes. A university does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity; in an undue financial or administrative burden; or that would post a direct threat to the health or safety of others. This determination can only be made by the head of the public entity or his or her designee and must be accompanied by a written statement of the reasons for reaching that conclusion. The determination that undue burdens would result must be based on all resources available for use in the program. If an action would result in such an alteration or such burdens, the public entity must take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity. The regulations provide more guidance on the determination of undue burden and direct threat. See 28 CFR Part 36.

 

Q. How do I know if the person in question is a "qualified individual with a disability?"

 

The decision as to whether or not an individual is "qualified" for the employment position or the academic program is made by the university. In the employment context, a person is qualified if they can perform (with reasonable accommodations if necessary) the essential functions of the job that the individual holds or desires. On the student side, the individual must meet the essential eligibility requirements for admission to the university or participation in programs or activities sponsored or provided by the university. If necessary, the university must make reasonable accommodations or modifications to rules, policies or practices, and/or provide auxiliary aids and services, that will allow the disabled individual to participate.

 

The decision as to whether or not a disability exists is usually made by a physician or other qualified specialist. The university may require documentation to substantiate a disability. If the university finds that the documentation is not adequate to support the existence of a disability or that the documentation does not suggest that the disability is limiting in the work or school environment in question, the university may require additional documentation or the university may deny the requested accommodation.

 

Common examples of disabilities covered by the ADA and Section 504 of the Rehabilitation Act are chronic diseases such as AIDS, hearing or vision impairment, severe mobility impairments, emotional or mental illness or epilepsy. To be covered by the ADA or the Rehabilitation Act, a disability must substantially limit a major life activity. Examples of a disability not covered under the ADA or Rehabilitation Act are a broken leg or ordinary stress that is not debilitating. However, there are some disabilities that are not so apparent, such as a learning disability which is covered by the ADA. Disruptive behavioral manifestations which have a negative effect on the work or educational environment, regardless of their cause, are not protected. Students or employees who exhibit such behavior may be asked to remove themselves from the situation.

 

Questions about the university's process for verifying that a disability exists for a student should be referred to the Office of Disability Support Services at ext. 5211. Direct questions relating to employment to the Office of General Counsel at ext. 5142 or the Equal Opportunity Officer at ext. 5050.

 

Q. What is a reasonable accommodation?

 

"An accommodation is generally any change in the work or school environment or in the way things are customarily done that enables an individual with a disability to enjoy equal opportunities" (Thomas v. Davidson Academy, 846 F. Supp. 611, 618 (M.D. Tenn. 1994), quoting 29 CFR 1630). The question of reasonableness of the accommodation depends on the facts and circumstances of each case, including the cost of the accommodation, feasible alternatives, and the consequences of not making the accommodation. "In all cases, a reasonable accommodation will involve a change in the status quo, for it is the status quo that presents the very obstacle that the ADA's reasonable accommodation provision attempts to address" (Burch v. Coca-Cola Co., 119 F. 3d 305, 318 (5th Cir. 1997)).

 

Q. What should I do if a student or an employee asks for a reasonable accommodation?


Student:
If a student asks for an reasonable accommodation, he or she should be referred to the Office of Disability Support Services. This office has a procedure for verifying the disability and has the expertise necessary to work with the student to find an appropriate, reasonable accommodation. The Office of Disability Support Services will keep the necessary records on student accommodations.

 

Employee: If an employee requests an accommodation, assure the employee that the university will make every effort to determine the most appropriate accommodation. Requests for accommodations should be reported to the Equal Opportunity Officer, who acts as the ADA Coordinator for the university.

 

In responding to a request for an employment accommodation, the following is six-step process should be followed.

 

 

Employment Accommodation: Six-Step Process

1.

Contact the Equal Opportunity Officer or the Office of General Counsel who will assist in verifying the disability.

2.

Refer to the employee's job description for the essential functions of the job.

3.

Consult with the employee to determine how the employee's disability limits his/her performance of the essential functions.

4.

Identify potential accommodations that would allow the employee to perform the essential functions of the job. Determine the effectiveness and reasonableness of each potential accommodation.

5.

Consider the employee's preference and opinion as to what works best for him/her. The supervisor, in consultation with the appropriate university authorities, however, selects the accommodation.

6.

Report the accommodation to the Equal Opportunity Officer (ADA Coordinator).

 

Q. Is alcoholism a disability which is protected by the ADA?


Addiction
to alcohol is considered a disability. Current alcoholics (even if they are still drinking), recovering alcoholics, relapsed alcoholics, individuals with a history of alcoholism, and individuals wrongly regarded as alcoholic are protected by the ADA if they can perform the essential functions of the job with or without reasonable accommodation. Alcohol and substance abuse are not protected by the ADA. Substandard performance is not protected (and should be well documented). Reasonable accommodations for an alcoholic may include a leave of absence to seek treatment. An alcoholic student who does not meet the performance standards of the university is also not considered qualified.

 


Addiction to alcohol is considered a
disability . . . but . . . alcohol and
substance abuse are not protected by the ADA.


 

A user of illegal drugs who is in a supervised rehabilitation program, or has completed such a program successfully is protected by the law against discrimination. The university has the right to require adherence to its substance abuse policies. See the CUA Drug and Alcohol Abuse Policy for faculty and staff and the Student Alcohol and Other Drug Abuse Policy. These policies apply regardless of the presence or absence of a disability.

 

Q. What about a counselor employee and former drug user who starts using drugs again?

 

This question came up in an exchange on the National Association of College and University Attorney email network, in September 2005 in the following form:

We have a drug/alcohol counselor who is/was a recovering drug user/alcoholic, but has "fallen off the wagon" with both drugs and alcohol. He is currently on leave without pay. We know from his psychiatrist (he allowed us to speak with him) that he is continuing to use. He has had his social work counselor's license suspended by the state licensing agency. What are our options, taking the ADA into consideration?

The following answer came from responses provided by Lucy Singer, Senior Associate General Counsel at the University of Vermont and Marc Cardinalli, Assistant General Counsel and Administrative Code Officer at the University of Nevada, Las Vegas:

 

First, if the individual's license is suspended, he is probably not qualified to provide counselling services and would probably not be covered by any malpractice insurance if he is allowed to. Accordingly, regardless of whether or not you must accommodate, because he is not currently licensed he cannot perform the essential functions of his job, with or without accommodation and the institution may terminate him.

 

Second, current drug/alcohol use need not be "accommodated" under the ADA. If it is interfering with his ability to perform his job, which it is, then the institution may terminate. The institution may choose to "accommodate" (in the sense of being compassionate or helpful) by providing extended leave/treatment, etc. Put another way, the ADA does not prevent the employer from taking action that would enable the employee to continue employment -- it just does not require you to do so as a legal accommodation. Bear in mind, however, that such "helpful accommodation" may be used in the future by other individuals as evidence that extended leave/treatment for current drug/alcohol abuse is "reasonable."

 

According to EEOC guidelines:

1. A person currently using drugs/alcohol is not a "person with a disability" when the employer acts an the basis of such use.

2. An employer may discharge an employee currently using illegal drugs

3. An employer may discipline/discharge an alcoholic who is using alcohol to the extent it impairs the ability of the person to perform satisfactorily on the job.

 

Q. What do I do if an employee or a student requests a leave of absence due to a disability?

 

Student: For any leave of absence, the student must first apply in writing to the academic dean of his or her school for such leave. If disability is the basis for the request, the first step is verification of the disability. The Dean should contact the Office of Disability Support Services for verification. If verification is on file, then the Office of Disability Support Services will be able to confirm the disability and answer questions that the Dean may have about the appropriateness of a leave as an accommodation. If the disability has not yet been documented, then the student should be instructed by the Dean to contact the Office of Disability Support Services to see how to proceed. A student is not required to provide medical documentation or test results to the Dean.

 

Employee: If the employee has not previously provided verification documenting the disability, then documentation should be requested. Consult with the Equal Opportunity Officer in such cases.

A leave of absence may be an appropriate accommodation. A reduced work schedule may also be appropriate. Consideration of whether or not to grant such a leave should include a review of CUA's disability policy, as well as a review of whether the leave might be more appropriately considered Family and Medical Leave. Collective bargaining agreements should also be consulted where relevant.

 

Granting the leave is not necessary under the ADA if it would be considered an undue hardship for the university, but a leave under the Family and Medical Leave Act (FMLA) might be required. The university's FMLA policy, which is based on both District of Columbia and federal law, specifies that a leave will be granted for the employee's own serious health condition. The FMLA policy also contains provisions for leaves for birth, adoption and placement of a child for foster care and safe leave under DC law. Sometimes there is an overlap between the ADA definition of a disability and the FMLA definition of a serious health condition. Questions on this issue may be directed to the Office of General Counsel.

 

If both the FMLA and the ADA apply, the employer must provide leave under whichever statutory provision provides the greater rights to employees (29 CFR 825.702. (b)-(e)).

 

Q. Must the employer create "light duty" positions for employees with disabilities?

 

The ADA does not require an employer to create positions or eliminate essential job functions, and thus the employer is not required to create a "light duty" position for an employee unable to perform all of the essential functions of his or her job. The employer may have to reassign the employee to an existing and vacant "light duty" position if the employee is qualified. The EEOC's position is that such "light-duty" positions may not be reserved solely for persons receiving workers' compensation benefits. See EEOC Enforcement Guidance: Workers' Compensation and the ADA (Sept. 3, 1996).

 

Q. Do I have to give preference to a "qualified applicant with a disability" over other applicants?

 

No. The university may select the most qualified applicant and make decisions based on reasons unrelated to a disability. However, as a government contractor, the university is required to take affirmative steps to employ and advance in employment qualified individuals with disabilities. CUA uses outreach in recruitment and provides reasonable accommodations, where necessary, in the employment and student application process.

 

Q. What questions about disabilities are prohibited by the ADA in the application/interview process?

 

The university may not ask whether the individual has or has had a disability, whether the individual has ever been hospitalized, or has taken or is taking prescription drugs, or whether the individual has ever filed a worker's compensation insurance claim. When the question is job-related, an employer may ask an applicant if they have been convicted of drunk driving, whether they drink alcohol (but not how much they drink), and narrowly-worded questions such as "Have you used illegal drugs in the past six months?" If you have questions in this area, contact the Office of General Counsel or the Equal Opportunity Officer.

 

Q. Are managers responsible for making ADA policy information available to students or employees?

 

While policy information is provided on the university policy website (http://policies.cua.edu), managers play an important role in assuring that such information is readily available to students and employees. For instance, we suggest that academic departments post a notice indicating the function and phone number of the Office of Disability Support Services. This information should also be provided to students at various times throughout the year in an alternative format.

 

Q. What should I do if my academic department is in a building that is not accessible?

 

Although all facilities are not yet accessible, the university is still required to assure access to programs and services. For example, if a student needs to meet with a faculty member or attend a departmental event, the meeting or event needs to be scheduled at an accessible location. The university attempts to foster a culture where students, faculty and staff feel no hesitation about requesting accommodations to enable them to participate in university-sponsored academic and extra-curricular programs in which they are interested.

 

Q. Does the Americans with Disabilities Act (ADA) require that all posters and notices about campus events contain language about accessibility?

 

The law requires schools to take such steps as may be necessary to ensure that no individual with a disability is excluded from programs and activities. It is our judgment, given the clear language of the law, that the most prudent course of action is to follow what has become a common best practice and include this language on all posters, notices, etc. of events. This is a cost effective way to support this legal requirement.

42 USC §12182 (b) (2) (A) (iii) of the ADA, which is applicable to private colleges and universities, provides as follows:

 

For purposes of subsection (a) of this section, discrimination includes-

 

(iii) a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.

 

 

Policies at colleges and universities describing what should be included, when it should be included, and where it should be included, can be found at the following web links.

 

Resources

Standard Accessibility Language for NC State Programs, Services, and Employment Announcements

DOJ ADA Standards for Accessible Design

 

 


 

 

Links checked and updated June 22nd, 2010, FJL.