Americans with Disabilities Act

1. Americans with Disabilities Act Amanda Franklin, J.D.| ORM Conference

2. In a Nutshell… La. R.S. 46:1951 • It is the policy of this state to encourage and enable a person with a disability to participate fully in the social and economic life of the state, to achieve maximum personal independence, to otherwise fully enjoy and use all public facilities available in the state, and to engage in remunerative employment.

3. https://www.ada.gov/ regs2010/titleII_2010/title_ii_primer.html

4. Americans with Disabilities Act • Federal law passed in 1990 • Title II of the ADA applies to state and local governments • All departments, agencies, special purpose districts, and other instrumentalities of state or local governments (public entities) • All programs, services, or activities of public entities • First federal regulations interpreting Title II implemented in 1991 • ADA Amendments Acts (ADAAA) passed in 2008 • Federal regulations implementing ADAAA Title II requirements enacted in 2016 • Updated design standards published in 2010

5. What is a Disability? • A physical or mental impairment that substantially limits one or more major life activities of an individual • A record of having such an impairment • Being regarded as having such an impairment

6. Physical or Mental Impairment 28 C.F.R. 35.104 • Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: • Neurological - Musculoskeletal - Special Sense Organs • Respiratory (including speech organs) - Cardiovascular • Reproductive - Digestive - Genitourinary • Hemic and Lymphatic - Skin - Endocrine • Any mental or psychological disorder such as: • Mental Retardation - Organic Brain Syndrome • Emotional or Mental Illness - Specific Learning Disabilities

7. Record of Such Impairment • Has a history of a mental or physical impairment that substantially limits one or more major life activities • Ex: Cancer now in remission • Has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities • Ex: Misdiagnosis

8. Regarded as Having an Impairment • Has a physical or mental impairment that does not substantially limit major life activities but that is treated as constituting such a limitation • Has a physical or mental impairment that substantially limits major life activities only as a result of others toward such impairment • Does not have a physical or mental impairment but is treated as having such an impairment

10. How to Address ADA Concerns

11. How to Address ADA Concerns • Policies and Procedures • General Nondiscrimination Policy • ADA Public Notice • Topic-Specific Policies • Grievance Procedure • ADA Coordinator • Point of contact for services, requests, accommodations, or complaints • Periodic Self-Evaluations • Training for Staff • Especially front line staff who routinely interact with the public

12. Equal Treatment…And Then Some • General Rule: Equal Treatment. Must not treat people with disabilities in a different or inferior manner • May not be isolated, separated, or denied the opportunity to participate in programs offered to others • Provide integrated settings • May offer programs specifically for people with disabilities, but individual has a choice whether to participate in special or regular program • Rules based on actual, objective risks • Not assumptions, stereotypes, or generalizations • Not entitled to waiver, exception, or preferential treatment • However, may need to make reasonable accommodations

13. Reasonable Accommodations • Focus on allowing a fair and equal opportunity to participate in programs and activities • Will depend on the facts and circumstances • Provide a chair for someone to wait in line • Need not be moved to the front of the line • Allow food to be brought in if the person has a condition that requires them to eat frequently (i.e., diabetes) • Assist with completing applications or documents • Need not fundamentally alter the essential nature of the program or service

14. Service Animals Basic Principles • Dogs Only • No restrictions on breeds • Must be individually trained to do work or perform tasks directly related to the person’s disability (NOT emotional support) • Louisiana extends protection to service dogs in training • Need not be: • Professionally trained • Specially identified

15. Service Animals Accessibility • General Rule: Must be allowed in all areas of a facility where the public is allowed to go • Exceptions: • Legitimate safety risk • Fundamentally alter the nature of services • Can exclude service animals ONLY if dog is: • Out of control and handler does not take effective action to control it • Not housebroken • If dog is excluded, must give the person with a disability the opportunity to enter premises or obtain goods or services without the animal

16. Service Animals Permitted Inquiries • What Can You Ask? • Is the dog required because of a disability? • What work or task has the dog been trained to perform? • You Cannot Ask: • About the nature or extent of the person’s disability • To see medical documentation of a disability • For proof of the service animal’s training, certification, or licensure • That the dog demonstrate its ability to perform the task or work

17. Mobility Devices General Rules • Must be allowed into all areas where the public is allowed to go • Exception: Legitimate safety requirements based on actual risk, not speculation or stereotypes • Must provide service in alternate ways, if possible

18. Mobility Devices What About Other Power-Driven Mobility Devices? • Develop and communicate policies regarding which are allowed where and when based on the following factors: • Device type, size, weight, dimensions, and speed • Volume of pedestrian traffic • Facility’s design and operational characteristics • Square footage, indoors/outdoors, storage space, placement of stationary equipment/devices/furniture • Can safety standards be established to permit safe operation? • Is there a substantial risk of serious harm to environment or natural or cultural resources?

19. Mobility Devices Permitted Inquiries • May ask for credible assurance that the device is required because of a disability • Valid, State-issue disability parking tag or card • Verbal statement that device is being used because of a mobility disability • Unless person is observed doing something that contradicts this assurance • Cannot ask the person about their disability

20. Facility Access General Rules • Programs and services, when viewed in their entirety, must be accessible to people with disabilities, but not all facilities must necessarily be made accessible • Public entities have an ongoing obligation to make programs and services accessible to people with disabilities • Periodically reassess what steps can be taken • Continually reassess financial resources • Minimize maintenance and repair interruptions • Provide access in other ways during times of interruption • All new facilities must be accessible to and usable by people with disabilities according to 2010 Standards

21. Facility Access Existing Facilities • Structural changes are not required when other solutions are feasible • However, where other solutions are not feasible, structural changes are required • Undue financial and administrative burdens must be determined by a high level official • No lower than a Department Head; budgetary authority and responsibility for spending decisions • Consider all resources available for funding and operation • Written statement of reasons for conclusion • Take other action that would not result in undue burden but would nevertheless ensure access to benefits or services

22. Facility Access Alterations to Facilities • Alteration • YES: Remodeling, renovating, rehabilitating, reconstructing, changing or rearranging structural elements/configuration of walls or partitions, other changes that could affect the usability of the facility • NOT: Normal maintenance, reroofing, painting, wallpapering, other changes that do not affect the usability of the facility • Elements and spaces being altered must comply with the 2010 Standards to the maximum extent feasible • Exemption for alterations that would threaten or destroy the historic significance of historic properties

23. Communication Effectiveness • Communication with people with disabilities must be as effective as communication with people without disabilities • Purpose: Ensure that person can communicate with, receive information from, and convey information to, the public entity • Effectiveness Considerations: • Nature of the communication • Length of the communication • Complexity of the communication • Context of the communication • Person’s normal method of communication

24. Communication Auxiliary Aids and Services • Public entity has the responsibility for providing effective communication • Cannot require someone to bring their own interpreter • Must give primary consideration to the choice of aid or service requested by the person with a communication disability • Must honor the person’s choice unless can demonstrate that: • Another equally effective means of communication is available • Use of the means chosen would result in a fundamental alteration or undue burden (written decision by high level official) • Must still provide alternative aid or service that provides effective communication

25. Communication Auxiliary Aids and Services • Blind, Vision Loss, or Deaf-Blind • Large Print - Braille - Computer Screen-Reading Program • Audio Recording of Printed Information • Qualified Reader: able to read effectively, accurately, and impartially, using any necessary specialized vocabulary • Deaf, Hearing Loss, or Deaf-Blind • Qualified Notetaker - Real-Time Captioning • Written Materials - Printed Script of Stock Speech • Qualified Sign Language Interpreter, Oral Interpreter, Cued Speech Interpreter, or Tactile Interpreter • Qualified = able to interpret effectively, accurately, and impartially, both receptively (understanding from person) and expressively (conveying back to person) using any necessary specialized vocabulary

26. Communication Auxiliary Aids and Services • Speech Disabilities • Qualified Speech-to-Speech Transliterator • Trained to recognize unclear speech and repeat it clearly • Paper and Pencil On Hand • Allow More Time to Communicate • Listen Attentively; Ask the person to repeat if you do not understand • Technology • Assistive Listening Systems and Devices - Video Text Displays • Captioning (open, closed, real-time, decoders and devices) • Screen Reader Software, Magnification Software, Optical Readers

27. Communication Website Accessibility • Government websites must have accessible features for people with disabilities; do not create unnecessary barriers • Add text equivalents for all images • Post all documents in accessible, text-based format (HTML, RTF) • Design website so that users can adjust text and font settings • Include audio descriptions and captions for videos posted • Minimize blinking, flashing, or auto-updating features or allow them to be stopped • Provide navigation aids (skip navigation or heading structures) • Can provide an alternative accessible way for citizens to use programs or services, but unlikely to provide equal degree of access (24/7)

28. Employment • Must provide reasonable accommodations to employees or applicants with disabilities • Need not eliminate an essential function of the job • Not required if accommodation would constitute an undue hardship • Examples of Reasonable Accommodations: • Job Restructuring • Modifying Work Schedules • Accessible Devices, Workstations, and Facilities • Part-Time Work or Leave

29. Employment • Employee must request accommodation, but need not use “magic words” to do so • Need something or having difficulty with something • What is the reason for the request or difficulty? • Interactive process is important • Discuss nature of disability and types of accommodation that might be necessary • Need not provide employee’s desired accommodation if there is another reasonable alternative

30. Thank you! Amanda Franklin, J.D. Amanda_Franklin@ajg.com