Re: Fwd: ADA Section 504-Does this apply to Adults?

March 12, 2003

I have a stupid question (and should know it since I work with ADA on a daily

basis), however, does anyone know if adults with pancreatitis are protected

under the ADA as well? Has anyone had to deal with this issue?

I went back to work on Monday after being out for over a month because of my

last hospitalization. I wasn't met with " much " resistance but, one of my main

attorneys isn't happy at all that I was out for so long.

Friends, I have so much going on in my head.

Re: Fwd: CHILDREN WITH PANCREATITIS

Just a small FYI...

My 10 yr old son is protected by the Americans with Disabilities Act (ADA

Section 504) regarding his absences and public school. This national law

sets precedence over state law...which is a lawsuit we have been fighting in

the state of TX. I had to get busy and educate our school district and

school board. ...Funny part is, we just would like to be " normal " and " blend

in " , but have found we have to be VERY ACTIVE and VISIBLE to help establish

proper protocol in handling kiddos with chronic illnesses in our area.

If I can help you at all....feel free to contact me at either email

address:

DJWmck@... or RedHeadAtHeart@....

Donna Womack

(Cameron's Mom)

Fort Worth, TX

March 12, 2003

Since I have been dealing with section 504 and idea i can tell you this only

applies to kids. on the other hand ADA should be alble to help you.

Patty Hurst

Bangor, ME

Mane State Rep

PAI

March 12, 2003

Since I have been dealing with section 504 and idea i can tell you this only

applies to kids. on the other hand ADA should be alble to help you.

Patty Hurst

Bangor, ME

Mane State Rep

PAI

March 12, 2003

QUESTIONS AND ANSWERS

Rev: September, 1992

This information has been compiled to assist the general public in

understanding and complying with the Americans with Disabilities Act. It

does not constitute a determination by the Department of Justice of your

rights and responsibilities, and it is not binding on the Department.

Introduction Barriers to employment, transportation, public accommodations,

public services, and telecommunications have imposed staggering economic and

social costs on American society and have undermined our well-intentioned

efforts to educate, rehabilitate, and employ individuals with disabilities.

By breaking down these barriers, the Americans with Disabilities Act will

enable society to benefit from the skills and talents of individuals with

disabilities, will allow us all to gain from their increased purchasing

power and ability to use it, and will lead to fuller, more productive lives

for all Americans.

The Americans with Disabilities Act gives civil rights protections to

individuals with disabilities similar to those provided to individuals on

the basis of race, color, sex, national origin, age, and religion. It

guarantees equal opportunity for individuals with disabilities in public

accommodations, employment, transportation, State and local government

services, and telecommunications.

Fair, swift, and effective enforcement of this landmark civil rights

legislation is a high priority of the Federal Government. This booklet is

designed to provide answers to some of the most often asked questions about

the new law.

This publication was printed with the generous support of the National

Institute on Disability and Rehabilitation Research

The Americans with Disabilities Act

Questions and Answers

Employment

Q. What employers are covered by title I of the ADA, and when is the

coverage effective?

A. The title I employment provisions apply to private employers, State and

local governments, employment agencies, and labor unions. Employers with 25

or more employees are covered as of July 26, 1992. Employers with 15 or more

employees will be covered two years later, beginning July 26, 1994.

Q. What practices and activities are covered by the employment

nondiscrimination requirements?

A. The ADA prohibits discrimination in all employment practices, including

job application procedures, hiring, firing, advancement, compensation,

training, and other terms, conditions, and privileges of employment. It

applies to recruitment, advertising, tenure, layoff, leave, fringe benefits,

and all other employment-related activities.

Q. Who is protected from employment discrimination?

A. Employment discrimination is prohibited against " qualified individuals

with disabilities. " This includes applicants for employment and employees.

An individual is considered to have a " disability " if s/he has a physical or

mental impairment that substantially limits one or more major life

activities, has a record of such an impairment, or is regarded as having

such an impairment. Persons discriminated against because they have a known

association or relationship with an individual with a disability also are

protected.

The first part of the definition makes clear that the ADA applies to

persons who have impairments and that these must substantially limit major

life activities such as seeing, hearing, speaking, walking, breathing,

performing manual tasks, learning, caring for oneself, and working. An

individual with epilepsy, paralysis, HIV infection, AIDS, a substantial

hearing or visual impairment, mental retardation, or a specific learning

disability is covered, but an individual with a minor, nonchronic condition

of short duration, such as a sprain, broken limb, or the flu, generally

would not be covered.

The second part of the definition protecting individuals with a record of a

disability would cover, for example, a person who has recovered from cancer

or mental illness.

The third part of the definition protects individuals who are regarded as

having a substantially limiting impairment, even though they may not have

such an impairment. For example, this provision would protect a qualified

individual with a severe facial disfigurement from being denied employment

because an employer feared the " negative reactions " of customers or

co-workers.

Q. Who is a " qualified individual with a disability " ?

A. A qualified individual with a disability is a person who meets legitimate

skill, experience, education, or other requirements of an employment

position that s/he holds or seeks, and who can perform the " essential

functions " of the position with or without reasonable accommodation.

Requiring the ability to perform " essential " functions assures that an

individual with a disability will not be considered unqualified simply

because of inability to perform marginal or incidental job functions. If the

individual is qualified to perform essential job functions except for

limitations caused by a disability, the employer must consider whether the

individual could perform these functions with a reasonable accommodation. If

a written job description has been prepared in advance of advertising or

interviewing applicants for a job, this will be considered as evidence,

although not conclusive evidence, of the essential functions of the job.

Q. Does an employer have to give preference to a qualified applicant with a

disability over other applicants?

A. No. An employer is free to select the most qualified applicant available

and to make decisions based on reasons unrelated to a disability. For

example, suppose two persons apply for a job as a typist and an essential

function of the job is to type 75 words per minute accurately. One

applicant, an individual with a disability, who is provided with a

reasonable accommodation for a typing test, types 50 words per minute; the

other applicant who has no disability accurately types 75 words per minute.

The employer can hire the applicant with the higher typing speed, if typing

speed is needed for successful performance of the job.

Q. What limitations does the ADA impose on medical examinations and

inquiries about disability?

A. An employer may not ask or require a job applicant to take a medical

examination before making a job offer. It cannot make any pre-employment

inquiry about a disability or the nature or severity of a disability. An

employer may, however, ask questions about the ability to perform specific

job functions and may, with certain limitations, ask an individual with a

disability to describe or demonstrate how s/he would perform these

functions.

An employer may condition a job offer on the satisfactory result of a

post-offer medical examination or medical inquiry if this is required of all

entering employees in the same job category. A post-offer examination or

inquiry does not have to be job-related and consistent with business

necessity.

However, if an individual is not hired because a post-offer medical

examination or inquiry reveals a disability, the reason(s) for not hiring

must be job-related and consistent with business necessity. The employer

also must show that no reasonable accommodation was available that would

enable the individual to perform the essential job functions, or that

accommodation would impose an undue hardship. A post-offer medical

examination may disqualify an individual if the employer can demonstrate

that the individual would pose a " direct threat " in the workplace (i.e., a

significant risk of substantial harm to the health or safety of the

individual or others) that cannot be eliminated or reduced below the " direct

threat " level through reasonable accommodation. Such a disqualification is

job-related and consistent with business necessity. A post-offer medical

examination may not disqualify an individual with a disability who is

currently able to perform essential job functions because of speculation

that the disability may cause a risk of future injury.

After a person starts work, a medical examination or inquiry of an employee

must be job-related and consistent with business necessity. Employers may

conduct employee medical examinations where there is evidence of a job

performance or safety problem, examinations required by other Federal laws,

examinations to determine current " fitness " to perform a particular job, and

voluntary examinations that are part of employee health programs.

Information from all medical examinations and inquiries must be kept apart

from general personnel files as a separate, confidential medical record,

available only under limited conditions.

Tests for illegal use of drugs are not medical examinations under the ADA

and are not subject to the restrictions of such examinations.

Q. When can an employer ask an applicant to " self-identify " as having a

disability?

A. Federal contractors and subcontractors who are covered by the

affirmative action requirements of section 503 of the Rehabilitation Act of

1973 may invite individuals with disabilities to identify themselves on a

job application form or by other pre-employment inquiry, to satisfy the

section 503 affirmative action requirements. Employers who request such

information must observe section 503 requirements regarding the manner in

which such information is requested and used, and the procedures for

maintaining such information as a separate, confidential record, apart from

regular personnel records.

A pre-employment inquiry about a disability is allowed if required by

another Federal law or regulation such as those applicable to disabled

veterans and veterans of the Vietnam era. Pre-employment inquiries about

disabilities may be necessary under such laws to identify applicants or

clients with disabilities in order to provide them with required special

services.

Q. Does the ADA require employers to develop written job descriptions?

A. No. The ADA does not require employers to develop or maintain job

descriptions. However, a written job description that is prepared before

advertising or interviewing applicants for a job will be considered as

evidence along with other relevant factors. If an employer uses job

descriptions, they should be reviewed to make sure they accurately reflect

the actual functions of a job. A job description will be most helpful if it

focuses on the results or outcome of a job function, not solely on the way

it customarily is performed. A reasonable accommodation may enable a person

with a disability to accomplish a job function in a manner that is different

from the way an employee who is not disabled may accomplish the same

function.

Q. What is " reasonable accommodation " ?

A. Reasonable accommodation is any modification or adjustment to a job or

the work environment that will enable a qualified applicant or employee with

a disability to participate in the application process or to perform

essential job functions. Reasonable accommodation also includes adjustments

to assure that a qualified individual with a disability has rights and

privileges in employment equal to those of employees without disabilities.

Q. What are some of the accommodations applicants and employees may need?

A. Examples of reasonable accommodation include making existing facilities

used by employees readily accessible to and usable by an individual with a

disability; restructuring a job; modifying work schedules; acquiring or

modifying equipment; providing qualified readers or interpreters; or

appropriately modifying examinations, training, or other programs.

Reasonable accommodation also may include reassigning a current employee to

a vacant position for which the individual is qualified, if the person is

unable to do the original job because of a disability even with an

accommodation. However, there is no obligation to find a position for an

applicant who is not qualified for the position sought. Employers are not

required to lower quality or quantity standards as an accommodation; nor are

they obligated to provide personal use items such as glasses or hearing

aids.

The decision as to the appropriate accommodation must be based on the

particular facts of each case. In selecting the particular type of

reasonable accommodation to provide, the principal test is that of

effectiveness, i.e., whether the accommodation will provide an opportunity

for a person with a disability to achieve the same level of performance and

to enjoy benefits equal to those of an average, similarly situated person

without a disability. However, the accommodation does not have to ensure

equal results or provide exactly the same benefits.

Q. When is an employer required to make a reasonable accommodation?

A. An employer is only required to accommodate a " known " disability of a

qualified applicant or employee. The requirement generally will be triggered

by a request from an individual with a disability, who frequently will be

able to suggest an appropriate accommodation. Accommodations must be made on

an individual basis, because the nature and extent of a disabling condition

and the requirements of a job will vary in each case. If the individual does

not request an accommodation, the employer is not obligated to provide one

except where an individual's known disability impairs his/her ability to

know of, or effectively communicate a need for, an accommodation that is

obvious to the employer. If a person with a disability requests, but cannot

suggest, an appropriate accommodation, the employer and the individual

should work together to identify one. There are also many public and private

resources that can provide assistance without cost.

Q. What are the limitations on the obligation to make a reasonable

accommodation?

A. The individual with a disability requiring the accommodation must be

otherwise qualified, and the disability must be known to the employer. In

addition, an employer is not required to make an accommodation if it would

impose an " undue hardship " on the operation of the employer's business.

" Undue hardship " is defined as an " action requiring significant difficulty

or expense " when considered in light of a number of factors. These factors

include the nature and cost of the accommodation in relation to the size,

resources, nature, and structure of the employer's operation. Undue hardship

is determined on a case-by-case basis. Where the facility making the

accommodation is part of a larger entity, the structure and overall

resources of the larger organization would be considered, as well as the

financial and administrative relationship of the facility to the larger

organization. In general, a larger employer with greater resources would be

expected to make accommodations requiring greater effort or expense than

would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must

try to identify another accommodation that will not pose such a hardship.

Also, if the cost of an accommodation would impose an undue hardship on the

employer, the individual with a disability should be given the option of

paying that portion of the cost which would constitute an undue hardship or

providing the accommodation.

Q. Must an employer modify existing facilities to make them accessible?

A. The employer's obligation under title I is to provide access for an

individual applicant to participate in the job application process, and for

an individual employee with a disability to perform the essential functions

of his/her job, including access to a building, to the work site, to needed

equipment, and to all facilities used by employees. For example, if an

employee lounge is located in a place inaccessible to an employee using a

wheelchair, the lounge might be modified or relocated, or comparable

facilities might be provided in a location that would enable the individual

to take a break with co-workers. The employer must provide such access

unless it would cause an undue hardship.

Under title I, an employer is not required to make its existing facilities

accessible until a particular applicant or employee with a particular

disability needs an accommodation, and then the modifications should meet

that individual's work needs. However, employers should consider initiating

changes that will provide general accessibility, particularly for job

applicants, since it is likely that people with disabilities will be

applying for jobs. The employer does not have to make changes to provide

access in places or facilities that will not be used by that individual for

employment-related activities or benefits.

Q. Can an employer be required to reallocate an essential function of a job

to another employee as a reasonable accommodation?

A. No. An employer is not required to reallocate essential functions of a

job as a reasonable accommodation.

Q. Can an employer be required to modify, adjust, or make other reasonable

accommodations in the way a test is given to a qualified applicant or

employee with a disability?

A. Yes. Accommodations may be needed to assure that tests or examinations

measure the actual ability of an individual to perform job functions rather

than reflect limitations caused by the disability. Tests should be given to

people who have sensory, speaking, or manual impairments in a format that

does not require the use of the impaired skill, unless it is a job-related

skill that the test is designed to measure.

Q. Can an employer maintain existing production/performance standards for

an employee with a disability?

A. An employer can hold employees with disabilities to the same standards

of production/performance as other similarly situated employees without

disabilities for performing essential job functions, with or without

reasonable accommodation. An employer also can hold employees with

disabilities to the same standards of production/performance as other

employees regarding marginal functions unless the disability affects the

person's ability to perform those marginal functions. If the ability to

perform marginal functions is affected by the disability, the employer must

provide some type of reasonable accommodation such as job restructuring but

may not exclude an individual with a disability who is satisfactorily

performing a job's essential functions.

Q. Can an employer establish specific attendance and leave policies?

A. An employer can establish attendance and leave policies that are

uniformly applied to all employees, regardless of disability, but may not

refuse leave needed by an employee with a disability if other employees get

such leave. An employer also may be required to make adjustments in leave

policy as a reasonable accommodation. The employer is not obligated to

provide additional paid leave, but accommodations may include leave

flexibility and unpaid leave.

A uniformly applied leave policy does not violate the ADA because it has a

more severe effect on an individual because of his/her disability. However,

if an individual with a disability requests a modification of such a policy

as a reasonable accommodation, an employer may be required to provide it,

unless it would impose an undue hardship.

Q. Can an employer consider health and safety when deciding whether to hire

an applicant or retain an employee with a disability?

A. Yes. The ADA permits employers to establish qualification standards that

will exclude individuals who pose a direct threat -- i.e., a significant

risk of substantial harm -- to the health or safety of the individual or of

others, if that risk cannot be eliminated or reduced below the level of a

" direct threat " by reasonable accommodation. However, an employer may not

simply assume that a threat exists; the employer must establish through

objective, medically supportable methods that there is significant risk that

substantial harm could occur in the workplace. By requiring employers to

make individualized judgments based on reliable medical or other objective

evidence rather than on generalizations, ignorance, fear, patronizing

attitudes, or stereotypes, the ADA recognizes the need to balance the

interests of people with disabilities against the legitimate interests of

employers in maintaining a safe workplace.

Q. Are applicants or employees who are currently illegally using drugs

covered by the ADA?

A. No. Individuals who currently engage in the illegal use of drugs are

specifically excluded from the definition of a " qualified individual with a

disability " protected by the ADA when the employer takes action on the basis

of their drug use.

Q. Is testing for the illegal use of drugs permissible under the ADA?

A. Yes. A test for the illegal use of drugs is not considered a medical

examination under the ADA; therefore, employers may conduct such testing of

applicants or employees and make employment decisions based on the results.

The ADA does not encourage, prohibit, or authorize drug tests.

If the results of a drug test reveal the presence of a lawfully prescribed

drug or other medical information, such information must be treated as a

confidential medical record.

Q. Are alcoholics covered by the ADA?

A. Yes. While a current illegal user of drugs is not protected by the ADA

if an employer acts on the basis of such use, a person who currently uses

alcohol is not automatically denied protection. An alcoholic is a person

with a disability and is protected by the ADA if s/he is qualified to

perform the essential functions of the job. An employer may be required to

provide an accommodation to an alcoholic. However, an employer can

discipline, discharge or deny employment to an alcoholic whose use of

alcohol adversely affects job performance or conduct. An employer also may

prohibit the use of alcohol in the workplace and can require that employees

not be under the influence of alcohol.

Q. Does the ADA override Federal and State health and safety laws?

A. The ADA does not override health and safety requirements established

under other Federal laws even if a standard adversely affects the employment

of an individual with a disability. If a standard is required by another

Federal law, an employer must comply with it and does not have to show that

the standard is job related and consistent with business necessity. For

example, employers must conform to health and safety requirements of the

U.S. Occupational Safety and Health Administration. However, an employer

still has the obligation under the ADA to consider whether there is a

reasonable accommodation, consistent with the standards of other Federal

laws, that will prevent exclusion of qualified individuals with disabilities

who can perform jobs without violating the standards of those laws. If an

employer can comply with both the ADA and another Federal law, then the

employer must do so.

The ADA does not override State or local laws designed to protect public

health and safety, except where such laws conflict with the ADA

requirements. If there is a State or local law that would exclude an

individual with a disability from a particular job or profession because of

a health or safety risk, the employer still must assess whether a particular

individual would pose a " direct threat " to health or safety under the ADA

standard. If such a " direct threat " exists, the employer must consider

whether it could be eliminated or reduced below the level of a " direct

threat " by reasonable accommodation. An employer cannot rely on a State or

local law that conflicts with ADA requirements as a defense to a charge of

discrimination.

Q. How does the ADA affect workers' compensation programs?

A. Only injured workers who meet the ADA's definition of an " individual

with a disability " will be considered disabled under the ADA, regardless of

whether they satisfy criteria for receiving benefits under workers'

compensation or other disability laws. A worker also must be " qualified "

(with or without reasonable accommodation) to be protected by the ADA.

Work-related injuries do not always cause physical or mental impairments

severe enough to " substantially limit " a major life activity. Also, many

on-the-job injuries cause temporary impairments which heal within a short

period of time with little or no long-term or permanent impact. Therefore,

many injured workers who qualify for benefits under workers' compensation or

other disability benefits laws may not be protected by the ADA. An employer

must consider work-related injuries on a case-by-case basis to know if a

worker is protected by the ADA.

An employer may not inquire into an applicant's workers' compensation

history before making a conditional offer of employment. After making a

conditional job offer, an employer may inquire about a person's workers'

compensation history in a medical inquiry or examination that is required of

all applicants in the same job category. However, even after a conditional

offer has been made, an employer cannot require a potential employee to have

a medical examination because a response to a medical inquiry (as opposed to

results from a medical examination) shows a previous on-the-job injury

unless all applicants in the same job category are required to have an

examination. Also, an employer may not base an employment decision on the

speculation that an applicant may cause increased workers' compensation

costs in the future. However, an employer may refuse to hire, or may

discharge an individual who is not currently able to perform a job without

posing a significant risk of substantial harm to the health or safety of the

individual or others, if the risk cannot be eliminated or reduced by

reasonable accommodation.

An employer may refuse to hire or may fire a person who knowingly provides

a false answer to a lawful post-offer inquiry about his/her condition or

worker's compensation history.

An employer also may submit medical information and records concerning

employees and applicants (obtained after a conditional job offer) to state

workers' compensation offices and " second injury " funds without violating

ADA confidentiality requirements.

Q. What is discrimination based on " relationship or association " under the

ADA?

A. The ADA prohibits discrimination based on relationship or association in

order to protect individuals from actions based on unfounded assumptions

that their relationship to a person with a disability would affect their job

performance, and from actions caused by bias or misinformation concerning

certain disabilities. For example, this provision would protect a person

whose spouse has a disability from being denied employment because of an

employer's unfounded assumption that the applicant would use excessive leave

to care for the spouse. It also would protect an individual who does

volunteer work for people with AIDS from a discriminatory employment action

motivated by that relationship or association.

Q. How are the employment provisions enforced?

A. The employment provisions of the ADA are enforced under the same

procedures now applicable to race, color, sex, national origin, and

religious discrimination under title VII of the Civil Rights Act of 1964, as

amended, and the Civil Rights Act of 1991. Complaints regarding actions that

occurred on or after July 26, 1992, may be filed with the Equal Employment

Opportunity Commission or designated State human rights agencies. Available

remedies will include hiring, reinstatement, promotion, back pay, front pay,

restored benefits, reasonable accommodation, attorneys' fees, expert witness

fees, and court costs. Compensatory and punitive damages also may be

available in cases of intentional discrimination or where an employer fails

to make a good faith effort to provide a reasonable accommodation.

Q. What financial assistance is available to employers to help them make

reasonable accommodations and comply with the ADA?

A. A special tax credit is available to help smaller employers make

accommodations required by the ADA. An eligible small business may take a

tax credit of up to $5,000 per year for accommodations made to comply with

the ADA. The credit is available for one-half the cost of " eligible access

expenditures " that are more than $250 but less than $10,250.

A full tax deduction, up to $15,000 per year, also is available to any

business for expenses of removing qualified architectural or transportation

barriers. Expenses covered include costs of removing barriers created by

steps, narrow doors, inaccessible parking spaces, restroom facilities, and

transportation vehicles. Information about the tax credit and the tax

deduction can be obtained from a local IRS office, or by contacting the

Office of Chief Counsel, Internal Revenue Service.

Tax credits are available under the Targeted Jobs Tax Credit Program

(TJTCP) for employers who hire individuals with disabilities referred by

State or local vocational rehabilitation agencies, State Commissions on the

Blind, or the U.S. Department of Veterans Affairs, and certified by a State

Employment Service. Under the TJTCP, a tax credit may be taken for up to 40

percent of the first $6,000 of first-year wages of a new employee with a

disability. This program must be reauthorized each year by Congress, and

currently is extended through June 30, 1993. Further information about the

TJTCP can be obtained from the State Employment Services or from State

Governors' Committees on the Employment of People with Disabilities.

Q. What are an employer's recordkeeping requirements under the employment

provisions of the ADA?

A. An employer must maintain records such as application forms submitted by

applicants and other records related to hiring, requests for reasonable

accommodation, promotion, demotion, transfer, lay-off or termination, rates

of pay or other terms of compensation, and selection for training or

apprenticeship for one year after making the record or taking the action

described (whichever occurs later). If a charge of discrimination is filed

or an action is brought by EEOC, an employer must save all personnel records

related to the charge until final disposition of the charge.

Q. Does the ADA require that an employer post a notice explaining its

requirements?

A. The ADA requires that employers post a notice describing the provisions

of the ADA. It must be made accessible, as needed, to individuals with

disabilities. A poster is available from EEOC summarizing the requirements

of the ADA and other Federal legal requirements for nondiscrimination for

which EEOC has enforcement responsibility. EEOC also provides guidance on

making this information available in accessible formats for people with

disabilities.

Q. What resources does the Equal Employment Opportunity Commission have

available to help employers and people with disabilities understand and

comply with the employment requirements of the ADA?

A. The Equal Employment Opportunity Commission has developed several

resources to help employers and people with disabilities understand and

comply with the employment provisions of the ADA.

Resources include:

1. A Technical Assistance Manual that provides " how-to " guidance on the

employment provisions of the ADA as well as a resource directory to help

individuals find specific information.

2. A variety of brochures, booklets, and fact sheets.

State and Local Governments

Q. Does the ADA apply to State and local governments?

A. Title II of the ADA prohibits discrimination against qualified

individuals with disabilities in all programs, activities, and services of

public entities. It applies to all State and local governments, their

departments and agencies, and any other instrumentalities or special purpose

districts of State or local governments. It clarifies the requirements of

section 504 of the Rehabilitation Act of 1973 for public transportation

systems that receive Federal financial assistance, and extends coverage to

all public entities that provide public transportation, whether or not they

receive Federal financial assistance. It establishes detailed standards for

the operation of public transit systems, including commuter and intercity

rail (AMTRAK).

Q. When do the requirements for State and local governments become

effective?P A. In general, they became effective on January 26, 1992.

Q. How does title II affect participation in a State or local government's

programs, activities, and services?

A. A state or local government must eliminate any eligibility criteria for

participation in programs, activities, and services that screen out or tend

to screen out persons with disabilities, unless it can establish that the

requirements are necessary for the provision of the service, program, or

activity. The State or local government may, however, adopt legitimate

safety requirements necessary for safe operation if they are based on real

risks, not on stereotypes or generalizations about individuals with

disabilities. Finally, a public entity must reasonably modify its policies,

practices, or procedures to avoid discrimination. If the public entity can

demonstrate that a particular modification would fundamentally alter the

nature of its service, program, or activity, it is not required to make that

modification.

Q. Does title II cover a public entity's employment policies and practices?

A. Yes. Title II prohibits all public entities, regardless of the size of

their work force, from discriminating in employment against qualified

individuals with disabilities. In addition to title II's employment

coverage, title I of the ADA and section 504 of the Rehabilitation Act of

1973 prohibit employment discrimination against qualified individuals with

disabilities by certain public entities.

Q. What changes must a public entity make to its existing facilities to

make them accessible?

A. A public entity must ensure that individuals with disabilities are not

excluded from services, programs, and activities because existing buildings

are inaccessible. A State or local government's programs, when viewed in

their entirety, must be readily accessible to and usable by individuals with

disabilities. This standard, known as " program accessibility, " applies to

facilities of a public entity that existed on January 26, 1992. Public

entities do not necessarily have to make each of their existing facilities

accessible. They may provide program accessibility by a number of methods

including alteration of existing facilities, acquisition or construction of

additional facilities, relocation of a service or program to an accessible

facility, or provision of services at alternate accessible sites.

Q. When must structural changes be made to attain program accessibility?

A. Structural changes needed for program accessibility must be made as

expeditiously as possible, but no later than January 26, 1995. This

three-year time period is not a grace period; all alterations must be

accomplished as expeditiously as possible. A public entity that employs 50

or more persons must have developed a transition plan by July 26, 1992,

setting forth the steps necessary to complete such changes.

Q. What is a self-evaluation?

A. A self-evaluation is a public entity's assessment of its current

policies and practices. The self-evaluation identifies and corrects those

policies and practices that are inconsistent with title II's requirements.

All public entities must complete a self-evaluation by January 26, 1993. A

public entity that employs 50 or more employees must retain its

self-evaluation for three years. Other public entities are not required to

retain their self-evaluations, but are encouraged to do so because these

documents evidence a public entity's good faith efforts to comply with title

II's requirements.

Q. What does title II require for new construction and alterations?

A. The ADA requires that all new buildings constructed by a State or local

government be accessible. In addition, when a State or local government

undertakes alterations to a building, it must make the altered portions

accessible.

Q. How will a State or local government know that a new building is

accessible?

A. A State or local government will be in compliance with the ADA for new

construction and alterations if it follows either of two accessibility

standards. It can choose either the Uniform Federal Accessibility Standards

or the Americans with Disabilities Act Accessibility Guidelines for

Buildings and Facilities, which is the standard that must be used for public

accommodations and commercial facilities under title III of the ADA. If the

State or local government chooses the ADA Accessibility Guidelines, it is

not entitled to the elevator exemption (which permits certain private

buildings under three stories or under 3,000 square feet per floor to be

constructed without an elevator).

Q What requirements apply to a public entity's emergency telephone

services, such as 911?

A. State and local agencies that provide emergency telephone services must

provide " direct access " to individuals who rely on a TDD or computer modem

for telephone communication. Telephone access through a third party or

through a relay service does not satisfy the requirement for direct access.

Where a public entity provides 911 telephone service, it may not substitute

a separate seven-digit telephone line as the sole means for access to 911

services by nonvoice users. A public entity may, however, provide a separate

seven-digit line for the exclusive use of nonvoice callers in addition to

providing direct access for such calls to its 911 line.

Q. Does title II require that telephone emergency service systems be

compatible with all formats used for nonvoice communications?

A. No. At present, telephone emergency services must only be compatible

with the Baudot format. Until it can be technically proven that

communications in another format can operate in a reliable and compatible

manner in a given telephone emergency environment, a public entity would not

be required to provide direct access to computer modems using formats other

than Baudot.

Q. How will the ADA's requirements for State and local governments be

enforced?

A. Private individuals may bring lawsuits to enforce their rights under

title II and may receive the same remedies as those provided under section

504 of the Rehabilitation Act of 1973, including reasonable attorney's fees.

Individuals may also file complaints with eight designated Federal agencies,

including the Department of Justice and the Department of Transportation.

Public Accommodations

Q. What are public accommodations?

A. A public accommodation is a private entity that owns, operates, leases,

or leases to, a place of public accommodation. Places of public

accommodation include a wide range of entities, such as restaurants, hotels,

theaters, doctors' offices, pharmacies, retail stores, museums, libraries,

parks, private schools, and day care centers. Private clubs and religious

organizations are exempt from the ADA's title III requirements for public

accommodations.

Q. Will the ADA have any effect on the eligibility criteria used by public

accommodations to determine who may receive services?

A. Yes. If a criterion screens out or tends to screen out individuals with

disabilities, it may only be used if necessary for the provision of the

services. For instance, it would be a violation for a retail store to have a

rule excluding all deaf persons from entering the premises, or for a movie

theater to exclude all individuals with cerebral palsy. More subtle forms of

discrimination are also prohibited. For example, requiring presentation of a

driver's license as the sole acceptable means of identification for purposes

of paying by check could constitute discrimination against individuals with

vision impairments. This would be true if such individuals are ineligible to

receive licenses and the use of an alternative means of identification is

feasible.

Q. Does the ADA allow public accommodations to take safety factors into

consideration in providing services to individuals with disabilities?

A. The ADA expressly provides that a public accommodation may exclude an

individual, if that individual poses a direct threat to the health or safety

of others that cannot be mitigated by appropriate modifications in the

public accommodation's policies or procedures, or by the provision of

auxiliary aids. A public accommodation will be permitted to establish

objective safety criteria for the operation of its business; however, any

safety standard must be based on objective requirements rather than

stereotypes or generalizations about the ability of persons with

disabilities to participate in an activity.

Q. Are there any limits on the kinds of modifications in policies,

practices, and procedures required by the ADA?

A. Yes. The ADA does not require modifications that would fundamentally

alter the nature of the services provided by the public accommodation. For

example, it would not be discriminatory for a physician specialist who

treats only burn patients to refer a deaf individual to another physician

for treatment of a broken limb or respiratory ailment. To require a

physician to accept patients outside of his or her specialty would

fundamentally alter the nature of the medical practice.

Q. What kinds of auxiliary aids and services are required by the ADA to

ensure effective communication with individuals with hearing or vision

impairments?

A. Appropriate auxiliary aids and services may include services and devices

such as qualified interpreters, assistive listening devices, notetakers, and

written materials for individuals with hearing impairments; and qualified

readers, taped texts, and brailled or large print materials for individuals

with vision impairments.

Q. Are there any limitations on the ADA's auxiliary aids requirements?

A. Yes. The ADA does not require the provision of any auxiliary aid that

would result in an undue burden or in a fundamental alteration in the nature

of the goods or services provided by a public accommodation. However, the

public accommodation is not relieved from the duty to furnish an alternative

auxiliary aid, if available, that would not result in a fundamental

alteration or undue burden. Both of these limitations are derived from

existing regulations and caselaw under section 504 of the Rehabilitation Act

and are to be determined on a case-by-case basis.

Q. Will restaurants be required to have brailled menus?

A. No, not if waiters or other employees are made available to read the

menu to a blind customer.

Q. Will a clothing store be required to have brailled price tags?

A. No, not if sales personnel could provide price information orally upon

request.

Q. Will a bookstore be required to maintain a sign language interpreter on

its staff in order to communicate with deaf customers?

A. No, not if employees communicate by pen and notepad when necessary.

Q. Are there any limitations on the ADA's barrier removal requirements for

existing facilities?

A. Yes. Barrier removal need be accomplished only when it is " readily

achievable " to do so.

Q. What does the term " readily achievable " mean?

A. Yes. Barrier removal need be accomplished only when it is " readily

achievable " to do so.

Q. What does the term " readily achievable " mean?

A. It means " easily accomplishable and able to be carried out without much

difficulty or expense. "

Q. What are examples of the types of modifications that would be readily

achievable in most cases?

A. Examples include the simple ramping of a few steps, the installation of

grab bars where only routine reinforcement of the wall is required, the

lowering of telephones, and similar modest adjustments.

Q. Will businesses need to rearrange furniture and display racks?

A. Possibly. For example, restaurants may need to rearrange tables and

department stores may need to adjust their layout of racks and shelves in

order to permit access to wheelchair users.

Q. Will businesses need to install elevators?

A. Businesses are not required to retrofit their facilities to install

elevators unless such installation is readily achievable, which is unlikely

in most cases.

Q. When barrier removal is not readily achievable, what kinds of

alternative steps are required by the ADA?

A. Alternatives may include such measures as in-store assistance for

removing articles from inaccessible shelves, home delivery of groceries, or

coming to the door to receive or return dry cleaning.

Q. Must alternative steps be taken without regard to cost?

A. No, only readily achievable alternative steps must be undertaken.

Q. How is " readily achievable " determined in a multisite business?

A. In determining whether an action to make a public accommodation

accessible would be " readily achievable, " the overall size of the parent

corporation or entity is only one factor to be considered. The ADA also

permits consideration of the financial resources of the particular facility

or facilities involved and the administrative or fiscal relationship of the

facility or facilities to the parent entity.

Q. Who has responsibility for ADA compliance in leased places of public

accommodation, the landlord or the tenant?

A. The ADA places the legal obligation to remove barriers or provide

auxiliary aids and services on both the landlord and the tenant. The

landlord and the tenant may decide by lease who will actually make the

changes and provide the aids and services, but both remain legally

responsible.

Q. What does the ADA require in new construction?

A. The ADA requires that all new construction of places of public

accommodation, as well as of " commercial facilities " such as office

buildings, be accessible. Elevators are generally not required in facilities

under three stories or with fewer than 3,000 square feet per floor, unless

the building is a shopping center or mall; the professional office of a

health care provider; a terminal, depot, or other public transit station; or

an airport passenger terminal.

Q. Is it expensive to make all newly constructed places of public

accommodation and commercial facilities accessible?

A. The cost of incorporating accessibility features in new construction is

less than one percent of construction costs. This is a small price in

relation to the economic benefits to be derived from full accessibility in

the future, such as increased employment and consumer spending and decreased

welfare dependency.

Q. Must every feature of a new facility be accessible?

A. No, only a specified number of elements such as parking spaces and

drinking fountains must be made accessible in order for a facility to be

" readily accessible. " Certain nonoccupiable spaces such as elevator pits,

elevator penthouses, and piping or equipment catwalks need not be

accessible.

Q. What are the ADA requirements for altering facilities?

A. All alterations that could affect the usability of a facility must be

made in an accessible manner to the maximum extent feasible. For example, if

during renovations a doorway is being relocated, the new doorway must be

wide enough to meet the new construction standard for accessibility. When

alterations are made to a primary function area, such as the lobby of a bank

or the dining area of a cafeteria, an accessible path of travel to the

altered area must also be provided.

The bathrooms, telephones, and drinking fountains serving that area must

also be made accessible. These additional accessibility alterations are only

required to the extent that the added accessibility costs do not exceed 20%

of the cost of the original alteration. Elevators are generally not required

in facilities under three stories or with fewer than 3,000 square feet per

floor, unless the building is a shopping center or mall; the professional

office of a health care provider; a terminal, depot, or other public transit

station; or an airport passenger terminal.

Q. Does the ADA permit an individual with a disability to sue a business

when that individual believes that discrimination is about to occur, or must

the individual wait for the discrimination to occur?

A. The ADA public accommodations provisions permit an individual to allege

discrimination based on a reasonable belief that discrimination is about to

occur. This provision, for example, allows a person who uses a wheelchair to

challenge the planned construction of a new place of public accommodation,

such as a shopping mall, that would not be accessible to individuals who use

wheelchairs. The resolution of such challenges prior to the construction of

an inaccessible facility would enable any necessary remedial measures to be

incorporated in the building at the planning stage, when such changes would

be relatively inexpensive.

Q. How does the ADA affect existing State and local building codes?

A. Existing codes remain in effect. The ADA allows the Attorney General to

certify that a State law, local building code, or similar ordinance that

establishes accessibility requirements meets or exceeds the minimum

accessibility requirements for public accommodations and commercial

facilities. Any State or local government may apply for certification of its

code or ordinance. The Attorney General can certify a code or ordinance only

after prior notice and a public hearing at which interested people,

including individuals with disabilities, are provided an opportunity to

testify against the certification.

Q. What is the effect of certification of a State or local code or

ordinance?

A. Certification can be advantageous if an entity has constructed or

altered a facility according to a certified code or ordinance. If someone

later brings an enforcement proceeding against the entity, the certification

is considered " rebuttable evidence " that the State law or local ordinance

meets or exceeds the minimum requirements of the ADA. In other words, the

entity can argue that the construction or alteration met the requirements of

the ADA because it was done in compliance with the State or local code that

had been certified.

Q. When are the public accommodations provisions effective?

A. In general, they became effective on January 26, 1992.

Q. How will the public accommodations provisions be enforced?

A. Private individuals may bring lawsuits in which they can obtain court

orders to stop discrimination. Individuals may also file complaints with the

Attorney General, who is authorized to bring lawsuits in cases of general

public importance or where a " pattern or practice " of discrimination is

alleged. In these cases, the Attorney General may seek monetary damages and

civil penalties.

Civil penalties may not exceed $50,000 for a first violation or $100,000

for any subsequent violation.

Miscellaneous

Q. Is the Federal government covered by the ADA?

A. The ADA does not cover the executive branch of the Federal government.

The executive branch continues to be covered by title V of the

Rehabilitation Act of 1973, which prohibits discrimination in services and

employment on the basis of handicap and which is a model for the

requirements of the ADA. The ADA, however, does cover Congress and other

entities in the legislative branch of the Federal government.

Q. Does the ADA cover private apartments and private homes?

A. The ADA does not cover strictly residential private apartments and

homes. If, however, a place of public accommodation, such as a doctor's

office or day care center, is located in a private residence, those portions

of the residence used for that purpose are subject to the ADA's

requirements.

Q. Does the ADA cover air transportation?

A. Discrimination by air carriers in areas other than employment is not

covered by the ADA but rather by the Air r Access Act (49 U.S.C. 1374

©).

Q. What are the ADA's requirements for public transit buses?

A. The Department of Transportation has issued regulations mandating

accessible public transit vehicles and facilities. The regulations include

requirements that all new fixed-route, public transit buses be accessible

and that supplementary paratransit services be provided for those

individuals with disabilities who cannot use fixed-route bus service. For

information on how to contact the Department of Transportation, see page 30.

Q. How will the ADA make telecommunications accessible?

A. The ADA requires the establishment of telephone relay services for

individuals who use telecommunications devices for deaf persons (TDD's) or

similar devices. The Federal Communications Commission has issued

regulations specifying standards for the operation of these services.

Q. Are businesses entitled to any tax benefit to help pay for the cost of

compliance?

A. As amended in 1990, the Internal Revenue Code allows a deduction of up

to $15,000 per year for expenses associated with the removal of qualified

architectural and transportation barriers.

The 1990 amendment also permits eligible small businesses to receive a tax

credit for certain costs of compliance with the ADA. An eligible small

business is one whose gross receipts do not exceed $1,000,000 or whose

workforce does not consist of more than 30 full-time workers. Qualifying

businesses may claim a credit of up to 50 percent of eligible access

expenditures that exceed $250 but do not exceed $10,250. Examples of

eligible access expenditures include the necessary and reasonable costs of

removing architectural, physical, communications, and transportation

barriers; providing readers, interpreters, and other auxiliary aids; and

acquiring or modifying equipment or devices.

Telephone Numbers for ADA Information

This list contains the telephone numbers of Federal agencies that are

responsible for providing information to the public about the Americans with

Disabilities Act and organizations that have been funded by the Federal

government to provide information through staffed information centers.

The agencies and organizations listed are sources for obtaining information

about the law's requirements and informal guidance in understanding and

complying with the ADA. They are not, and should not be viewed as, sources

for obtaining legal advice or legal opinions about your rights or

responsibilities under the ADA.

Architectural and Transportation Barriers Compliance Board

1- (voice and TDD)

Equal Employment Opportunity Commission

For questions and documents 1- (voice)

1- (TDD)

Alternate number for ordering documents (print and other formats)

202/663-7110 (TDD) 202/663-4264 (voice)

Federal Communications Commission

For ADA documents and general information 202/632-7260 (voice)

202/632-6999 (TDD)

Job Accommodation Network 1- (voice)

1- (TDD)

Within West Virginia 1- (voice & TDD)

President's Committee on Employment of 1- (voice People with

Disabilities Information Line: & TDD) ADA Work

U.S. Department of Justice 202/514-0301 (voice)

202/514-0383 (TDD)

U.S. Department of Transportation

Federal Transit Administration for ADA documents and information

202/366-1656 (voice) 202/366-2979 (TDD)

Office of the General Counsel (for legal questions)

202/366-9306 (voice) 202/755-7687 (TDD)

Federal Aviation Administration 202/376-6406 (voice)

Rural Transit Assistance Program (for information and assistance on

public transportation issues) 1- (voice & TDD)

Regional Disability and Business Technical Assistance Centers

ADA information, assistance, and copies of ADA documents supplied by the

Equal Employment Opportunity Commission and the Department of Justice, which

are available in standard print, large print, audio cassette, braille, and

computer disk, may be obtained from any of the ten Regional Disability and

Business Technical Assistance Centers.

Toll-free number for reaching any of the following Centers

1- (voice & TDD)

Region I (Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,

Connecticut)

207/874-6535 (voice & TDD)

Region II (New York, New Jersey, Puerto Rico)

609/392-4004 (voice) 609/392-7004 (TDD)

Region III (Pennsylvania, Delaware, land, District of Columbia,

Virginia, West Virginia)

703/525-3268 (voice & TDD)

Region IV (Kentucky, Tennessee, North Carolina, South Carolina, Georgia,

Alabama, Mississippi, Florida)

404/888-0022 (voice) 404/888-9098 (TDD)

Region V (Ohio, Indiana, Illinois, Michigan, Wisconsin, Minnesota)

312/413-7756 (voice & TDD)

Region VI (Arkansas, Louisiana, Oklahoma, Texas, New Mexico)

713/520-0232 (voice) 713/520-5136 (TDD)

Region VII (Iowa, Missouri, Nebraska, Kansas)

314/882-3600 (voice & TDD)

Region VIII (North Dakota, South Dakota, Montana, Wyoming,

Colorado, Utah)

719/444-0252 (voice & TDD)

Region IX (Arizona, Nevada, California, Hawaii, Pacific Basin)

510/465-7884 (voice) 510/465-3172 (TDD)

Region X (Idaho, Oregon, Washington, Alaska)

206/438-3168 (voice) 206/438-3167 (TDD)

Addresses for ADA Information

U.S. Equal Employment Opportunity Commission

1801 L Street NW

Washington, DC 20507

U.S. Department of Justice

Civil Rights Division

Public Access Section

P.O. Box 66738

Washington, DC 20035-6738

U.S. Department of Transportation

400 Seventh Street SW

Washington, DC 20590

Architectural and Transportation Barriers

Compliance Board

1331 F Street NW

Suite 1000

Washington, DC 20004-1111

Federal Communications Commission

1919 M Street NW Washington, DC 20554

This document is available in the following alternate formats:

- Braille - Large print - Audiocassette - Electronic file on

computer disk and electronic bulletin board .

Note: Reproduction of this document is encouraged.

Re: Fwd: CHILDREN WITH PANCREATITIS

>

> Just a small FYI...

> My 10 yr old son is protected by the Americans with Disabilities Act

(ADA

> Section 504) regarding his absences and public school. This national

law

> sets precedence over state law...which is a lawsuit we have been

fighting in

> the state of TX. I had to get busy and educate our school district and

> school board. ...Funny part is, we just would like to be " normal " and

" blend

> in " , but have found we have to be VERY ACTIVE and VISIBLE to help

establish

> proper protocol in handling kiddos with chronic illnesses in our area.

>

> If I can help you at all....feel free to contact me at either email

> address:

> DJWmck@... or RedHeadAtHeart@....

>

> Donna Womack

> (Cameron's Mom)

> Fort Worth, TX

>

> PANCREATITIS Association, Intl.

> Online e-mail group

>

> To reply to this message hit & quot;reply & quot; or send an e-mail

to: Pancreatitis (AT) Yahoo

>

March 12, 2003