This month in TA's November Transcript

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Hello all and welcome! We’re doing things a little differently this month. Since we usually do a live webinar on the last Friday of the month and this falls on a holiday, or day after, I suppose, this webinar has been pre-recorded so everyone can enjoy a safe and fun Thanksgiving. My name is Jenny DeVries, I am the Training Facilitator at the Rocky Mountain ADA Center, and I want to say thank you for joining! Let’s get started.

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For maximum accessibility I will be reading off these slides word-for-word and adding in any subsequent information at the end of each slide. So, the Information, materials, and/or technical assistance are intended solely as informal guidance and are neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA. The Rocky Mountain ADA Center, operated by Meeting the Challenge, Inc., is funded under a grant from the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR grant number 90DP0018-01-00) to provide technical assistance, training, and materials to Colorado, Utah, Montana, North Dakota, South Dakota, and Wyoming on the Americans with Disabilities Act.

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We are one of ten Regional ADA Centers. The Rocky Mountain Center serves region 8. To reach our center all you have to do is call 1-800-949-4232. That’s the number you’ll call for any kind of technical assistance or TA, as we like to call it. TA – is a large part of what we do. We help interpret the ADA for government officials, employers, small businesses, etc. We’re here to answer any tricky questions you might have. Network – We also have access to important entities within the ADA like the DOJ and EEOC and can refer people to our contacts within the network. Conduct research – Part of our grant funding requires we do research. For instance, we’re doing a fascinating study on how implicit bias affects people with disabilities. Training – Which is what we’re doing now, we offer training on all aspects of the ADA: from Etiquette to service animals to government’s responsibilities under the ADA. Publish – We have a wide variety of online trainings, as well as create blog posts addressing different aspects of the ADA. Social Media – We have a presence on Facebook, Instagram, Twitter, YouTube, LinkedIn and Pinterest.

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Our Learning Objectives today are to discuss the most common calls, emails and online requests from those in Region 8. We will review common questions about employment, program access for Title II, and Service Animals to name a few! And we will provide resources to those TA’s. If you would like to send in a question, my contact information will be at the end of this presentation. Some questions or concerns may not arise until later, after you’ve digested the material, so please know that this is just the first step in our learning journey, and we are happy to talk with you more outside of this webinar.

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Before we dive into the most common questions this month, I’d like to review Titles I, II and III of the ADA, as well as address the other two common topics we received. Title I prohibits private employers, State and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. Employers must provide reasonable accommodations to employees with disabilities when necessary to complete the essential functions of a job. This month we’ll be specifically addressing filing complaints, exceptions to Title I and general guidance for PWD requesting an accommodation. Title II applies to State and local government entities, and protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Today we will cover facility access and parking. However, this month we’ve seen a lot of crossover between Title II and Title III. Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors' offices. Public accommodations must reasonably modify their policies, practices and procedures to accommodate customers with disabilities. Also falling under the ADA is Service Animals, Effective Communication and the final topic we’ll cover is COVID and the ADA. Service Animals have a specific definition for Titles II and III but not under Title I. If that doesn’t quite make sense, don’t worry we’ll dive far more into that later on. People who have vision, hearing, or speech disabilities (“communication disabilities”) use different ways to communicate. For example, people who are blind may give and receive information audibly rather than in writing and people who are deaf may give and receive information through writing or sign language rather than through speech. The ADA requires that title II entities (State and local governments) and title III entities (businesses and nonprofit organizations that serve the public) communicate effectively with people who have communication disabilities. The goal is to ensure that communication with people with these disabilities is equally effective as communication with people without disabilities. Like Title II, Title III requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards in regards to barrier removal.

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How can I file a complaint against my former employer who has not made accommodations in the workplace? Every employee or applicant has the right to request a RA. If the employer is not fulfilling their responsibility, then it is within that employee’s rights under the ADA to file a complaint. Laws require you go to the EEOC first before contacting a private attorney. Request the “Right-To-Sue” letter. It’s the next step in the complain filing process. It gives you the right to begin the legal process to determine if discrimination has occurred. I have an employee who has a drinking problem and wanted to know if they're covered under the ADA. Alcoholism and Drug Addiction is not considered a disability, however anxiety and depression might qualify. Anyone who is currently using drugs illegally is not protected by the ADA and may be denied employment or fired on the basis of such use. The ADA does not prevent employers from testing applicants or employees for current illegal drug use, or from making employment decisions based on verifiable results. A test for the illegal use of drugs is not considered a medical examination under the ADA; therefore, it is not a prohibited pre-employment medical examination and you will not have to show that the administration of the test is job related and consistent with business necessity. The ADA does not encourage, authorize or prohibit drug tests. I need guidance on interviewing, disclosing disability, and other hiring help. Our center recently released a new video series on the ADA, specifically about employment.

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Instead of answering the question myself, I thought this newest videos of our series would do the trick!

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There are a number of resources we gave out this month related to Title I questions. The first is knowing where to file a complaint. The Equal Employment Opportunity Commission’s phone number is 800-669-4000. Disability Law Colorado is 303-722-0300. And Colorado Civil Rights Division can be reached at 719-545-3520. Obviously these are Colorado-specific resources if you’re outside of Colorado, give us a ring and we can get ones specific to your state. For retraining or finding a job, consider the Job Accommodation Network at www.askjan.com. The Department of Vocational Rehabilitation is 719-635-3585. And finally, your local Independent Living Center as well.

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Now, as a reminder, Title II applies to state and local governments. The focus for Title II is ensuring that the programs they offer to the public must be accessible for people with disabilities. It’s called program access. So this refers to the first question. Our government entity recently purchased a temporary building to serve as a mobile location for government services. Would the 2010 ADA Standards apply, or is it a matter of program access? Yes, this is a matter of Programmatic Access rather than the Standards, which only apply to fixed elements and features of buildings/facilities located on sites. We can look to the Standards as guidance to fulfill due diligence in determining adequate accessibility for Program Access. The access aisle is the element that defines accessible parking, a means to leave the vehicle and enter the site-wide accessible route. Car parking is required to have a minimum 60" wide access aisle. Two accessible parking spaces can share a single access aisle. Another part of the Title II requirements is the 2010 ADA Standards for Design. Title II is enforced by the Department of Justice and they’re the ones who creating minimum standards for accessible design, which means we’re covering that with this second question. There seems to be a conflict between section 703 and 4.2.5 of the 2010 Standards in the mounting height for signage being higher than the reach range requirements. 703.4.1 is a referenced requirement from the 2010 ADA Standards and 4.2.5 is referenced from the 1991 Standards, so you’ll need to pick one set of Standards to follow. The 2010 Standards are Standards that should be applicable unless you’re performing a facility audit of an existing facility built to the 1991 Standards for the purpose of Safe Harbor.

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Alright, I really liked this question because it makes us break down a couple of different concepts. Someone who lives in the apartment above a business has a disability and is parking in the business's accessible spot, making anyone else park down the street to access that shop. Is that legal for them to use all the time? Also on our street, parking law states you cannot park in a spot for longer than 2 hours, does that apply to accessible spots as well? Finally, if it is a private parking lot, can someone with an accessible parking permit use the lot anyways? The only difference in how accessible parking is treated from other comparable parking is who is allowed to park in those spaces. Any other rules, laws, ordinances, or restrictions for the same provided parking apply to accessible parking. Think about it this way: if this apartment dweller were not disabled and was parking in a normal (non-accessible) parking space more or less constantly, would he be allowed to do so by the applicable local laws? If he would be permitted to do so, then he should be permitted to utilize the accessible space as well as a person with a disability. If the local laws prevent this practice in non-accessible parking, then this would also apply to accessible parking. If the local laws do not prevent this known practice of a resident, it might be a good idea for the city to consider if making an additional accessible parking space in this general area is reasonable or not. And yes, an existing 2-hour parking limit should be applied to all parking, accessible or not. It’s not really a matter of codes. The ADA itself is a Civil Rights law which prohibits discrimination on the basis of disability. The way that is stated is on the premise of not being denied equal opportunity to participate in the Programs and Services provided by a covered entity on the basis of disability. It basically just states what an entity is not allowed to do. By understanding all the regulations about what not to do, then you can understand the what the ADA does not regulate, which would be the equal treatment of accessible parking to normal parking. Nowhere in the ADA does it say that accessible parking must play by a different set of rules than comparable non-accessible parking. Within this context, a municipality can choose to treat accessible features different if it provides for equal or increased access, but may not discriminate and impose stricter requirements which limits access compared to the non-disabled population. Federally, there’s no stipulation to treat accessible features different than non-accessible features other than the scoping, technical, and maintenance requirements that provide for physical access. only those who are permitted to park in private lots can utilize accessible parking located in a private lot. A business has every right to have any vehicle towed which is parking in it’s lot illegally, including accessible parking.

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Resources for our Title II questions are the 2010 ADA Standards for Accessible Design. And finally, know your local ADA Coordinator. We can find access to these resources for you if you give us a call or email.

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Title Three. I feel like I'm being discriminated against by my landlord and my neighbors are pretending to be disabled to get benefits. The ADA primarily focuses on public areas and the FHA applies to issues related to housing. How does the ADA interact with drive-by-lawsuits? The abuse of the ADA has more to do with how our legal system is structured rather than how the ADA itself is written. We spoke at length about drive-by lawsuits, the nature and intent of the ADA, barrier removal as the primary obligation under Title III, the meaning of readily achievable, how to perform a self-evaluation of the facilities of a Title III, priorities, and keeping records of performing due diligence as the best defense against DBL. An employee called seeking guidance on providing modifications of PPP to people who have a disability. The company is suspicious that non-disabled people are taking advantage of their policy to allow only those with mobility disabilities to utilize services. There is no enforceable standard for accessible parking. Local codes vary on enforcement. The US Access Board says that there's no specified method or color of parking spaces and access aisle markings. Access aisle must be marked in a manner that discourages parking in them, especially those that are 8 ft at van spaces.

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Title Three Resources. As a reminder, Title Three entities have general requirements of maintenance of accessible features and to remove barriers in case of alterations or new construction while also following local building codes. If you would like to file a complaint under Title Three, the US Attorney’s Office in Denver can be reached at 303-454-0100 or the Department of Justice at 800-514-0301. And if you need advocacy you may consider the Civil Rights Education Enforcement Center for Legal Assistance (CREEC).

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So, Service Animals was a major, major topic this month!  The first question we got was How can I get a Service Animal? Can I train my existing pet to be my SA? Reach out to local ILC for resources on where to access professionally trained SA's. You may also train your pet to be a SA as long as it meets the requirements under the ADA. I work at a hotel and am unsure of the ADA Service Animal requirements. One of the guests brought in three SA's but they are out of control and one attacked an employee. The ADA only allows 2 questions to be asked about SA's. However, the ADA requires SA's need to be under control of the handler at all times and should not pose a threat to the safety and welfare of others.

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We received a number of other TA’s this month. Again with service animals, we had a number of questions around the differences between Titles I, II and III. Under Title II and III, there is language specific to requiring a service animal in the public place, but under Title I for employment, service animals would not necessarily be "required" and "allowed"- this would need to be a reasonable accommodation. I know we have had some employers become confused with not seeing service animals under Title I the same as they would Title II and III. Leah and I always discuss the service animals as a reasonable accommodation. I just want to be clear with employers that under Title I, there isn't a specific definition of service animal (like there is in Title II and III), but we still talk about what is considered an ADA defined service animal and its being a reasonable accommodation. This often leads to the comfort animal vs service animal discussion. Because there isn't a definition of service animal under Title I, and knowing there isn't one for comfort animal- again, we continue to talk about how that service animal or the comfort animal could be a reasonable accommodation. Next was about masks. Someone was denied service in a restaurant because they have a disability that precludes them from wearing a face mask. Now, The State of CO provides a guidance on the state mandatory mask requirement and when someone may not be required to wear one (People who are 10 years old and younger, People who cannot medically tolerate a face covering, Children ages 2 and under should NOT wear masks or cloth face coverings.) Reasonable modifications should be discussed, and documentation would probably be prohibited by the Title III entity. And finally, along the same lines with COVID and PPP, some questions about providing modifications for PPP but a company was suspicious of people without disabilities taking advantage of the policy. People without disabilities do not have rights under the ADA. However, a Title III entity may not require documentation of a disability, should not discriminate against people on the basis of disability, and that disability be construed to not create a demanding standard.

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The ADA and Face Mask Policies Brief is meant for public accommodations, like for customers in businesses.  If you’re looking for legal assistance, you should consider reaching out to Disability Rights Colorado, Utah, Montana, North Dakota, South Dakota or Wyoming. We always make a lot of Fair Housing Act referrals and their number is 888-341-7781. And of course, we’re always here to help! You can reach us at 1-800-949-4232.

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That wraps it up for me! Thank you again for joining me today, or whenever you decided to tune in. We offer This Month in TA’s on the last Friday of every month, so keep an eye out for next month’s webinar! Again, my name is Jenny DeVries and on behalf of the Rocky Mountain ADA Center, we hope you all have a safe and healthy holiday!