What You Need To Know About ADA Compliance
The Americans with Disabilities Act (ADA) is a civil rights law that prohibits discrimination against individuals with disabilities, in areas including employment, school, transportation, and all other areas both private and public.
Title I of the ADA requires employers to provide reasonable accommodation to qualified applicants and employees with a disability. Title III prohibits discrimination on the basis of disability in public accommodations. Employers that fail to provide reasonable accommodation or discriminate against individuals with disabilities face civil penalties in the tens of thousands of dollars and/or lawsuits.
Your HR department may know the risk of failing to comply with the ADA, but may not know how to verify compliance or even how to go about rectifying issues. Here is what you should know about complying with the ADA, and why a competent and involved HR team is more important than ever.
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The ADA Title I accommodation process is rather involved. It requires an in-depth review of the job requirements and the limitations of an employee’s disability.
All employers with 15 employees or more must abide by the ADA. If you have 15 or more employees, but you’re unsure of your ADA compliance status, now is the time to review company policy and make updates where required.
Ensuring compliance starts before an employee with disability is hired. The first thing you should do is double-check your employment policies—do you have existing procedures for handling requests to accommodate? Do job postings include language confirming essential job requirements, such as standing or sitting for long periods, or regularly lifting objects? You should make clear how you plan to accommodate an employee with a disability to ensure the essential job requirements can still be performed after the necessary accommodations are made.
To be clear, the ADA defines a person with disabilities as having one of the following:
- A physical or mental impairment that limits major life activity
- A record of physical or mental impairment limited a major life activity, or
- An individual that is regarded as having a physical or mental impairment
As with any other non-disabled individual, employers are permitted to make sure the candidate is “qualified”—that is, they possess the skill, experience, education, and other qualities required to do the job.
Once the employer learns of the need for a reasonable accommodation, they should begin a review process with the employee. The employee should share details of the disability and any limitations that may need accommodations. This process is considered an interactive effort between the employer and employee. Though documenting this process is not required, maintaining official records is considered best practice.
Next, the employer should determine if accommodations are reasonable or pose an “undue hardship.” An undue hardship is defined as an action that requires significant difficulty or expense. An employer is not required to make accommodations where there is an undue hardship.
In the case of non-apparent physical or mental disability, the employer should not try to prove an employee is lying. Rather, they should ask further questions regarding any work limitations, request medical information from the individual’s health care provider, and determine if the requested accommodations are reasonable.
If the employee with disability is hired, accommodations can be modified if there is a change in the nature or severity of their disability, or their job requirements change.
Title III is not limited to employees, but to all individuals, and all companies open to the public must comply.
Handicap parking spaces, wheelchair ramps, bathroom stall rails—such accommodations are part of Title III of the ADA.
Failure to comply with Title III may result in litigation. A record high 11,053 Title III lawsuits were filed in federal court in 2019. The rate of such lawsuits slowed in the first half of 2020, but this was largely due to the country’s shutdown in early spring.
In general, Title III is broad and all encompassing. It stipulates that “places of public accommodation” must make disability accommodations. Places of public accommodation fall into 12 categories, all of which are outlined here. As one might expect, the most common type of Title III lawsuit revolves around inaccessible facilities and physical barriers, including parking, exterior paths of travel, store aisles, restroom elements, and sales counters.
However, when we say Title III is broad, we do mean broad. It’s not even limited to physical spaces.
Website accessibility is a hot topic in both federal and state court. The majority of plaintiffs in these cases are blind and allege that certain websites do not work with their screen reader software, which reads website content aloud. A number of deaf individuals have also filed Title III accessibility suits, with their claims revolving around the absence of closed captioning in movies, television shows, and other video media.
Yes, websites, televisions and video streams are places of public accommodation.
There are some other similar trends. Hundreds of lawsuits were filed in 2019 due to the lack of Braille printed on some gift cards. Another type of ADA lawsuit pertained to hotel reservation websites. Plaintiffs alleged these platforms failed to provide information about accessible guest accommodations, which must be provided to allow those with disabilities to make informed traveling decisions.
What’s the takeaway? There is no one-size-fits-all ADA compliance solution. A grocery store may need to install a wheelchair ramp, a television station must provide closed captioning, and online businesses should make sure their websites conform to WCAG 2.1 AA technical standards.
What can organizations do to reduce the risk of litigation?
As the number of ADA lawsuits goes up, it is more important than ever for HR professionals to ensure their organizations are in compliance with the law. Here are some best practices that your HR department should strive to implement.
When it comes to Title I:
Write clear employee handbook policies. Employers should maintain a written policy that instructs employees to contact HR for workplace accommodations required to do their job.
Make sure job requirements are clear. Job descriptions and actual job duties should be clear and true. If modifications to job duties are necessary—for example, if an individual with disabilities is promoted into a position that is taxing due to their disabilities—ADA accommodations should be revisited and changes made if required.
Thoroughly engage during the interactive process. The interactive process is important when it comes to determining the needs of the potential employee and whether accommodations can be made. An ADA violation can result if an organization does not make a good-faith effort. This process is crucial, and often requires an ADA expert. For example, one might think that the interactive process is over if the initial accommodation cannot be met. However, it is often best to consider alternative accommodations before a company decides they cannot hire the employee in question.
Document the hiring process. When determining workplace accommodation, there is a back and forth dialogue between employer and employee. Formalizing the process by keeping records and notes can allow you to prove that you followed the ADA properly.
When it comes to Title III:
Have an ADA expert assess your facility and remove or alter barriers to access. Litigation has centered around bathroom stalls that were too small and sales counters that were too tall. It can be hard to figure out if you’re compliant without the help of an expert.
Hire a digital accessibility expert to review your website and/or mobile apps to ensure they comply with WCAG 2.1 AA technical standards. If you have not confirmed the accessibility of your website, now is the time to do so. Website accessibility is becoming more and more litigious. Everything from alt text to audio control is under the microscope. Organizations should get an in-depth website accessibility check before they wind up in court.
Provide accessibility information on your website and at your physical place of business. Hotels and places like auditoriums have been dinged for not providing accessibility information about their property, which is a requirement. Update websites, booking platforms, and signs on the property regarding site accessibility.
Get a professional HR Evaluation to discover if you are ADA compliant.
Is your company dealing with litigation stemming from ADA noncompliance? Or are you concerned about the potential for litigation, but just don’t know how to ensure you comply? Employer’s Guardian is here to help! Our professional HR Evaluation service will uncover exposures, and we will provide you a detailed, actionable report with our findings. When you work with Employer’s Guardian, you work with a team of experts who protect your organization and help you better manage employees. Contact us today to learn more!
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