ADA & A.T.:
What The Final Regulations Say (TITLE I)

By Robert R. Williams

This article is reprinted from the A.T. Quarterly, Volume 2, Number 6 (1991).

As required by the law, the U.S. Department of Justice and the Equal Employment Opportunity Commission published final regulations on the Americans with Disabilities Act (ADA) (P.L. 101-336) in the July 26 Federal Register. This summarizes the major requirements in EEOC's final regulations relating to the use of assistive technology by individuals with disabilities in the workplace and suggest A.T. Action Steps for ensuring that these key provisions are carried out in an effective manner. Future columns will do the same with regards to rules issued to implement Titles II, III and IV of the ADA as well.

Under Title I of the ADA, the Equal Employment Opportunity Commission is responsible for developing and enforcing final regulations to prohibit discrimination in all aspect of employment, including the recruitment, interviewing, hiring, promotion or discharge of anyone who is a qualified individual with a disability. The regulations will apply to all businesses with 15 or more employees and will be phased in over a four year period. For firms with 25 or more employees, they will take effect on July 26, 1992. Businesses with 15 or more employees will have to begin to comply with them on July 26, 1994. In issuing final rules, the EEOC also published an extensive "interpretative guidance" analysis, which explains each of the provisions in detail. Key aspects of both are highlighted below.

Qualified Individual with a Disability: The rules define this to mean anyone with a disability who meets the requisite skill, experience, education, and other work-related requirements of a job with or without reasonable accommodation.

Essential Functions: This term means the fundamental or critical duties of a particular job. In order to be considered a qualified individual with a disability, a person must be able to perform the essential functions of the job with or without reasonable accommodation. The individual does not necessarily have to be able to perform other more "marginal functions" of a position (i.e., those less central to a job) so long as he/she can carry out its essential functions.

Reasonable Accommodation and Not Making Reasonable Accommodation: A reasonable accommodation can include but is not limited to: "Making existing facilities readily accessible to and usable by employees with disabilities; job restructuring, part-time or modified work schedules; reassignment to a vacant position; the acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations, training materials or policies; the provision of qualified readers or interpreters; and other reasonable accommodations for individuals with disabilities."

A.T. Action Step: Make employers and those with disabilities aware that assistive technology can play a critical role in carrying out each of these job accommodation.

Assistive Technology: Section 1630.2(o) of the rules clearly indicates that providing a reasonable accommodation to a job applicant or an employee with a disability may involve "the acquisition or modification of equipment or devices." It also emphasizes that such accommodation may have to be afforded to an individual both during the application process as well as once the person has been hired. Unfortunately, neither the rules nor, the interpretative guidelines provide examples of how different types of assistive technology can be used to provide reasonable accommodation to a job applicant or an employee with a disability in a wide variety of cost-effective ways.

A.T. Action Step: Provide employers with effective examples of how the purchase or adaptation of work equipment can make it much more possible, practical and simply easier for those with disabilities to get the job done. It is critical that individuals with disabilities, state systems change projects and others all take up this initiative.

Making Existing Facilities Accessible: The final rules require that, unless it would cause an undue burden to do so, employers must make existing facilities accessible to an employee with a disability. The interpretative guidance also points out that, unless it would pose an undue burden, existing non-work areas (e.g., restrooms, staff lounges, dining and training rooms) must be made accessible as a reasonable accommodation as well.

A.T. Action Step: Make employers aware of the variety of ways in which A.T. can be used to make their workplaces accessible.

Direct Threat: The rules indicate that businesses do not have to hire or employ a person with a disability who poses a direct threat, i.e., "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated by a reasonable accommodation." The EEOC emphasizes that the determination of whether someone with a disability poses a direct threat must be done on an individual and objective basis and must not be based on paternalism, stereotypes or concerns about increased costs.

A.T. Action Step: As in other areas, a great deal can and must be done to inform individuals with disabilities and employers of the vital role that assistive technology can play in ameliorating unnecessary risks to workers.

Undue Burden: This term means that providing an accommodation would result in the employer having to incur "significant difficulty or expense" to do so. Factors to be considered include: 1. the nature and net cost of the needed accommodation, minus any available tax credits, deductions and outside funding; 2. the overall size and financial resources of the employer's entire business; 3. the overall size and financial resources of the actual work facility that the person with a disability would be working; and, 4. the impact that the accommodation would have on the operations of the business and its other employees.

However, even when a firm can show that providing an accommodation would pose an undue burden for it to do in its entirety, the business must be open to sharing the costs of doing so with the person with a disability and/or an outside funding agency. Thus, if a person needs a series of job accommodations costing $5,000 and a firm could only afford to pay $2,500 without incurring an undue burden, it has to pay at least this much of the costs; the individual or others can cover the remaining expenses.

A.T. Action Step: Open up new job opportunities for persons with significant disabilities by developing effective job accommodations, cost sharing strategies and disseminating them as widely as possible.

The A.T. Quarterly was a newsletter developed by the RESNA TA Project under a contract with the National Institute on Disability and Rehabilitation Research (NIDRR), U.S. Department of Education (ED). The content, however, does not necessarily reflect the position or policy of NIDRR/ED and no official endorsement of the material should be inferred.

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