The 2010 Amendments to the ADA limited the definition of a service animal. This has caused confusion for housing providers and employers. Keep in mind that Section 504 of the Rehabilitation Act and the Fair Housing Act apply to housing as well and HUD has construed the definition of a service animal more broadly than the ADA, as amended. Here is HUD guidance on how the ADA requirements for public accommodations (stores, restaurants, etc.) differ from housing requirements: https://portal.hud.gov/hudportal/documents/huddoc?id=servanimals_ntcfheo2013-01.pdf.
In summary, the ADA has limited the definition of a service animal under Titles II and III of the ADA to only dogs, and has specifically excluded such animals that only provide "emotional support." In short, these limitations on the definition of a service animal do NOT apply to housing. If you require the service of an emotional support animal to use and enjoy your dwelling, your rights may be protected under the HUD interpretation of laws applicable to equal housing opportunities to people with disabilities, despite the limitations contained in the ADA, as amended. DOJ guidance further explains how the revised ADA definition of service animals applies only under the ADA and NOT under the Fair Housing Act or Air Carrier Access Act (applicable to travel aboard commercial airlines). http://www.ada.gov/service_animals_2010.htm. The result is, an emotional support animal is likely protected at home or on airline travel, but not necessarily while dining out or shopping, unless it also meets the revised ADA definition of a service animal.
Moreover, employers subject to Title I of the ADA may not necessarily refuse accommodation to employees with disabilities based on the revised definition of a service animal under Titles II and III of the ADA. It is certainly conceivable that a comfort animal could be a reasonable accommodation necessary to an employee's performance of the essential functions of his or her job that would not unduly burden the employer. These determinations must be made on a case by case basis and blanket exclusion of comfort animals without further consideration is likely violative of an employer's obligations under Title I of the ADA.
Thursday, November 19, 2015
Tuesday, September 22, 2015
How to Advocate Effectively
I'm proud to represent Jean Marie Lawrence of Chattanooga, Tennessee. Her recent efforts to bring access to the downtown Chattanooga Post Office are representative of two important topics I'd like to share. The first is how to be an effective advocate. The second is the reason why it is necessary for more people with disabilities to become effective advocates.
Effective advocacy looks like this: https://youtu.be/Sr-Ol8uOeVs. Jean Marie went to the post office in downtown Chattanooga after receiving a notice that there was a package waiting for her. She arrived at this post office to find an extensive flight of granite stairs leading to the main entrance. The post office is located in the Joel Solomon Federal Building which was constructed in 1932-3 and is on the National Register of Historic Places. There wasn't a single sign indicating the location of an accessible entrance. Eventually, with the assistance of a stranger, Jean Marie learned there was a ramp leading to a service entrance in the rear of the building adjacent to the loading dock. This is an employee only entrance and Jean Marie felt the ramp to be excessively steep.
Jean Marie said this experience made her feel like a piece of junk mail - and she did something about it. Jean Marie got everyone's attention. She didn't just complain to the one postal worker on duty at this post office during her attempted visit. She didn't just complain to the police. She didn't just send a letter to her Congressman. She didn't just file an administrative complaint with the US Access Board. She also didn't just stop with talking to the local news to bring attention to the situation she and every other individual in a wheelchair faces when trying to access this post office. She is organizing and mobilizing her local disabled community toward seeing this issue remedied. This is effective advocacy.
Why should people with disabilities do this? Simple. Because no one else will. There is no one to go around and inspect facilities, programs and services to ensure they are equally accessible to people with disabilities. It is up to people with disabilities to enforce their own civil rights. Thank you Jean Marie!
Effective advocacy looks like this: https://youtu.be/Sr-Ol8uOeVs. Jean Marie went to the post office in downtown Chattanooga after receiving a notice that there was a package waiting for her. She arrived at this post office to find an extensive flight of granite stairs leading to the main entrance. The post office is located in the Joel Solomon Federal Building which was constructed in 1932-3 and is on the National Register of Historic Places. There wasn't a single sign indicating the location of an accessible entrance. Eventually, with the assistance of a stranger, Jean Marie learned there was a ramp leading to a service entrance in the rear of the building adjacent to the loading dock. This is an employee only entrance and Jean Marie felt the ramp to be excessively steep.
Jean Marie said this experience made her feel like a piece of junk mail - and she did something about it. Jean Marie got everyone's attention. She didn't just complain to the one postal worker on duty at this post office during her attempted visit. She didn't just complain to the police. She didn't just send a letter to her Congressman. She didn't just file an administrative complaint with the US Access Board. She also didn't just stop with talking to the local news to bring attention to the situation she and every other individual in a wheelchair faces when trying to access this post office. She is organizing and mobilizing her local disabled community toward seeing this issue remedied. This is effective advocacy.
Why should people with disabilities do this? Simple. Because no one else will. There is no one to go around and inspect facilities, programs and services to ensure they are equally accessible to people with disabilities. It is up to people with disabilities to enforce their own civil rights. Thank you Jean Marie!
Tuesday, September 8, 2015
Ticket Sales Requirements
I've been getting a lot of complaints about this issue lately. Ever tried to buy accessible seating positions for a concert or a sporting event online? Ever get a message that requires you to call for accessible seats or a message that you will get a call back or an email within 24 hours? Unless everyone has to call or wait up to 24 hours to purchase tickets, that's a violation of the Americans with Disabilities Act. If typical ticket purchasers can choose a seat and put a ticket in an online shopping cart for immediate check out, then people who require accessible seats are required to be afforded that same opportunity.
Here's the DOJ link: http://www.ada.gov/ticketing_2010.htm.
In a nutshell, from the foregoing link:
Venues are required to sell tickets for accessible seats in the same manner and under the same conditions as all other ticket sales.
Tickets for accessible seats must be sold:
Also, accessible tickets are required to be sold at the same price as other seats in the same seating section. There can be no surcharge added to the accessible seating positions.
Here's the DOJ link: http://www.ada.gov/ticketing_2010.htm.
In a nutshell, from the foregoing link:
Venues are required to sell tickets for accessible seats in the same manner and under the same conditions as all other ticket sales.
Tickets for accessible seats must be sold:
- during the same hours;
- through the same methods of purchase (by telephone, on site, through a website, or through third-party vendors); and
- during the same stages of sales (pre-sales, promotions, general sales, wait lists, or lotteries) as non-accessible seats.
Also, accessible tickets are required to be sold at the same price as other seats in the same seating section. There can be no surcharge added to the accessible seating positions.
Monday, April 6, 2015
Automatic Door Openers--When Program Access Requirements Exceed New Construction Accessibility Standards
The interplay between the new construction accessibility standards applicable to both Title II and Title III of the ADA and the program access requirements applicable only to Title II, is fascinating--if you're an accessibility nerd like me--and can result in greater overall accessibility in Title II facilities. The best example, and one I've used often in the past, is powered automatic door openers. Over the past thirteen years that I've been advocating for people with disabilities, I've met countless independent, active, employed, people with disabilities who cannot open a door, no matter how compliant with new construction standards that door may be.
The 2010 ADA Standards, which includes the 2004 ADA Accessibility Guidelines (ADAAG), includes guidelines for the operation of automatic and power-assisted doors and gates in section 404.3. However, there is no requirement to equip any door with powered or automatic openers anywhere in the guidelines. Rather, there are only guidelines for how they are to operate if they are employed. What does this mean for the many people with disabilities who lack the ability to open a door, regardless of how "compliant" it is with ADA standards, unless it is also either automatic or power-assisted? Does it mean those people are excluded and relegated to reliance on the chivalry of others to open doors for them?
With regard to public accommodations under Title III, unfortunately the answer is yes. However, this is not so with regard to the programs, services and activities of a public entity subject to Title II of the ADA. Remember, program access can mandate relocation of programs, services and activities to an accessible location, in lieu of barrier removal to an existing facility. Programs, services and activities must be readily accessible and usable to individuals with disabilities per Title II. Clearly, if a person with a disability lacks the ability to open a door, then that door must either be removed or powered for any program, service or activity located behind it to be accessible and usable to her.
For this reason, I've helped many people with disabilities advocate for powered or automatic doors to be installed on several university campuses and other facilities servicing government programs and services, such as courthouses and municipal buildings.
The 2010 ADA Standards, which includes the 2004 ADA Accessibility Guidelines (ADAAG), includes guidelines for the operation of automatic and power-assisted doors and gates in section 404.3. However, there is no requirement to equip any door with powered or automatic openers anywhere in the guidelines. Rather, there are only guidelines for how they are to operate if they are employed. What does this mean for the many people with disabilities who lack the ability to open a door, regardless of how "compliant" it is with ADA standards, unless it is also either automatic or power-assisted? Does it mean those people are excluded and relegated to reliance on the chivalry of others to open doors for them?
With regard to public accommodations under Title III, unfortunately the answer is yes. However, this is not so with regard to the programs, services and activities of a public entity subject to Title II of the ADA. Remember, program access can mandate relocation of programs, services and activities to an accessible location, in lieu of barrier removal to an existing facility. Programs, services and activities must be readily accessible and usable to individuals with disabilities per Title II. Clearly, if a person with a disability lacks the ability to open a door, then that door must either be removed or powered for any program, service or activity located behind it to be accessible and usable to her.
For this reason, I've helped many people with disabilities advocate for powered or automatic doors to be installed on several university campuses and other facilities servicing government programs and services, such as courthouses and municipal buildings.
What does "Program Access" mean?
I am often asked to explain the difference between the standards applied to determine compliance with Title III of the ADA of a public accommodation, versus those applied to Title II of the ADA with regard to a public entity. In other words, why do public entities (such as cities or other governmental entities, like state universities, for example) have a different mandate under Title II, than public accommodations (such as a local restaurant or retail store) under Title III?
One way to explain the difference is that Title II (much like Section 504 of the Rehabilitiation Act) is concerned with "programs, activities and services" and is not primarily concerned with "facilities," as is Title III. The standard for public entities subject to Title II is "program access." It requires that a
public entity's services, programs, or activities, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities.
In contrast, barriers must be removed from places of public accommodation under Title III where such removal is "readily achievable," without regard to whether the public accommodation's services can be made accessible through other methods. I discussed what "readily achievable" means in my previous blog entry. Suffice it to say, that alternatives to barrier removal are only triggered under Title III when there is no readily achievable method of removing a barrier from a public accommodation.
According to the Title II Technical Assistance Manual, "Public entities may achieve program accessibility by a number of methods. In many situations, providing access to facilities through structural methods, such as alteration of existing facilities and acquisition or construction of additional facilities, may be the most efficient method of providing program accessibility. The public entity may, however, pursue alternatives to structural changes in order to achieve program accessibility. Nonstructural methods include acquisition or redesign of equipment, assignment of aides to beneficiaries, and provision of services at alternate accessible sites."
In short, I think it is safe to say that barrier removal from a public entity's facility is only required when there is no other way to provide program access. An example of how program access can be provided by a public entity without removing barriers from its facilities would be a university's Office of Disability Services. A university will often have such an office in which a student with a disability registers. That office will then ensure that the classes sought by the student are provided in an accessible location, that the professor provides office hours in an accessible location, etc.
As a general rule of thumb, for a facility to be accessible enough to provide program access it should have accessible parking, an accessible entrance, and an accessible primary function area (i.e., class room, meeting room, court room, license office, etc.). Of course, if bathrooms are provided that serve the primary function area, they should be accessible as well.
Finally, a public entity 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 or in undue financial or administrative burdens.
One way to explain the difference is that Title II (much like Section 504 of the Rehabilitiation Act) is concerned with "programs, activities and services" and is not primarily concerned with "facilities," as is Title III. The standard for public entities subject to Title II is "program access." It requires that a
public entity's services, programs, or activities, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities.
In contrast, barriers must be removed from places of public accommodation under Title III where such removal is "readily achievable," without regard to whether the public accommodation's services can be made accessible through other methods. I discussed what "readily achievable" means in my previous blog entry. Suffice it to say, that alternatives to barrier removal are only triggered under Title III when there is no readily achievable method of removing a barrier from a public accommodation.
According to the Title II Technical Assistance Manual, "Public entities may achieve program accessibility by a number of methods. In many situations, providing access to facilities through structural methods, such as alteration of existing facilities and acquisition or construction of additional facilities, may be the most efficient method of providing program accessibility. The public entity may, however, pursue alternatives to structural changes in order to achieve program accessibility. Nonstructural methods include acquisition or redesign of equipment, assignment of aides to beneficiaries, and provision of services at alternate accessible sites."
In short, I think it is safe to say that barrier removal from a public entity's facility is only required when there is no other way to provide program access. An example of how program access can be provided by a public entity without removing barriers from its facilities would be a university's Office of Disability Services. A university will often have such an office in which a student with a disability registers. That office will then ensure that the classes sought by the student are provided in an accessible location, that the professor provides office hours in an accessible location, etc.
As a general rule of thumb, for a facility to be accessible enough to provide program access it should have accessible parking, an accessible entrance, and an accessible primary function area (i.e., class room, meeting room, court room, license office, etc.). Of course, if bathrooms are provided that serve the primary function area, they should be accessible as well.
Finally, a public entity 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 or in undue financial or administrative burdens.
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