Learning to Comply with the American with Disabilities Act
Goldman, Charles D., Nation's Cities Weekly
The Americans with Disabilities Act (ADA), P.L. 101-336, 42 U.S.C. Sec. 12101 et seq. mandates equality of opportunity (nondiscrimination) for qualified persons with physical or mental disabilities in all programs, services, benefits, and activities of cities (and other state and local governments). The ADA is now in effect. Title II of ADA, and the implementing regulations of the United States Department of Justice, 28 CFR part 35, became effective on January 26, 1992.
Title II requires that city officials achieve nondiscrimination through the concept of program accessibility. This concept embraces not only the external activities of cities, i.e., the provision of services, such as social, health, park, etc., but also the internal activities, including employment.
For local governments, the requirements for employment nondiscrimination are two-tiered. All municipalities had to comply with the Title II (DOJ) requirements that directly reference the Section 504 employment provisions as of January 26, 1992. However, for cities with 25 or more employees, the city as an employer becomes subject to the ADA Title I employment requirements as of July 26, 1992. For cities with 15 or more employees, July 26, 1993 is the effective date when these jurisdictions become subject to the Title I regulations promulgated by the Equal Employment Opportunity Commission. For those cities with fewer than 15 employees, they remain subject to the Section 504 employment provisions as referenced in the Title II regulations issued by U.S. Department of Justice.
Federal Funding and Financial Resources
It is critically important to note that unlike previous federal mandates, such as in Section 504 of the Rehabilitation Act, the ADA prohibits discrimination against qualified disabled individuals, whether or not the city receives any federal funding. Hence, the ADA applies to every aspect of local government operations in all jurisdictions.
A key ADA question for cities is how will the federal government react to their financial situations. Many cities (as well as state and county governments) are having hard times, i.e."budget shortfalls." There are no federal funds specifically earmarked to assist city governments comply with the ADA; however, the key concepts of "program accessibility", "reasonable accommodation" and "maximum extent possible" all recognize that cost may be a factor in providing equal access and opportunity.
During these times of fiscal constraint, the concern, for example, about spending money on a "reasonable accommodation" for a disabled employee may seem valid. However, most employees with disabilities do not require any accommodation and that studies show most accommodations which do cost money, cost less than $500. Bear in mind that the cost of an accommodation and the employer's financial resources are among the factors in determining the reasonableness of an accommodation.
Program and Physical Accessibility
The most crucial concept for cities is that of program accessibility which also recognizes the need to avoid undue financial burdens in achieving nondiscrimination. This concept permits city governments to make all of its existing programs, not all existing structures, accessible to persons with disabilities.
Achieving program accessibility may mean relocating services and activities from an inaccessible site to an accessible structure, redesigning equipment, providing auxiliary aides to help disabled beneficiaries of city programs, as well as altering an existing structure. For example, if you have two facilities for health care services, you could make one of the sites that offered all city health services accessible, not both.
Since the cost of accessibility is minimal in new structures, new buildings (permitted after January, 1992) are required to be fully accessible and usable. Alterations to existing structures which affect or could affect the usability of the structure are also required to be accessible to the maximum extent feasible. …