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HUMAN RESOURCES

How to Comply With the Americans With Disabilities Act
 

Breaking down what the decades-old act means for small businesses.
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Jim Langevin has been a quadriplegic since a shooting accident when he was a teenager. On July 26, Langevin, a U.S. representative from Rhode Island and the first quadriplegic elected to the House, rose to the speaker's podium in the House of Representatives with the help of a newly installed mechanical lift system.

Langevin was there to honor, and demonstrate the use of, the Americans with Disabilities Act. The paralyzed congressman was asked to be the first wheelchair user to preside over the chamber in celebration of the 20th anniversary of the law that prohibited discrimination against people with disabilities.

"It was a catalyst that ended permissible exclusions," says Jonathan Young, chairman of the National Council on Disability and a former White House liaison and counsel on disability policy initiatives. "It set a new level of expectation that people with disabilities ought to be integrated into society."

The ADA contains a lot of commonly known provisions ­— such as its necessary to provide ramps or elevators for wheelchair-bound employees — and some really technical ones, such as minimum widths for doorways and numbers of required accessible parking spaces. Complying with the act allows for tax breaks and deductions, but penalties in ADA lawsuits can come with big price tags.


Complying with the Americans With Disabilities Act: The ADA Basics

The ADA was established to recognize that people with disabilities deserve and need equal access to employment, transit, stores, restaurants, and other businesses to be a part of their community and have purchasing power. The act itself prevents anyone from being discriminated against on the basis of disability. It set requirements for making a workplace accessible. In doing so, it established new business construction guidelines.

The ADA recommends reviewing your business policies to make sure your compliance is comprehensive. For instance, segregating disabled customers or employees — such as in a designated seating area — is prohibited. Also, policies that prohibit animals should be sure to exclude service animals. You should also keep your employment records and other information related to applicants who are covered by the ADA. They'll come in handy in case you face a discrimination suit.

While experts say the law has succeeded in opening access to buildings and providing legal protections, it still hasn't been effective in changing attitudes about disabled people. Advocates lament that the employment rate among America's disabled population hasn't increased in 20 years. Of the 26 million disabled people in the country, 21 million are unemployed.

"We still need to work on the public attitudes about people with disabilities and their capabilities," says Richard Horne, director of the division of policy planning and research for the office of disability employment policy under the U.S. Department of Labor. "The attitudes in the work place haven't changed as much as they need to."

Dig Deeper: Inc.com's Articles on the Americans With Disabilities Act


Complying With the Americans With Disabilities Act: Who's Responsible for Complying?

  • Businesses with at least 15 employees.
  • Both landlord and tenant of the business. But the two parties can determine who is responsible for complying with the obligations through a lease or other contract.
  • State and local government services, programs and activities, including public education and social services, state legislatures and courts, town meetings, police and fire departments, employment services, and public transportation.
  • Commercial facilities, including privately owned businesses of all sizes such as stores and shops, restaurants and bars, theaters, hotels, recreation facilities, private museums, doctor's offices, health spas, convention centers and doctors' offices.
  • Any business that serves the public must remove physical barriers when "readily achievable," which means it can be done without much difficulty or expense. But the ADA is flexible: The "readily achievable" label depends on the size and resources of your business. Larger companies are expected to take a more active role than smaller ones.  Compliance can be an ongoing process, so the ADA allows businesses to create a plan to remove barriers over time as resources become available.
  • The law does not apply to strictly residential private apartments and homes.
  • Experts say to be mindful that the inflictions considered disabilities run a wide gamut, from paralysis and mental health issues to alcoholism or recuperation from a disease, such as cancer. An employee might not disclose their condition right away either.

Dig Deeper: An ADA Checklist

Complying With the Americans With Disabilities Act: What Counts as a "Barrier?"

What's the best accommodation to ever come along for all people in the workplace, disabled or otherwise? 

"The electronic stapler," Horne says. "It helps every worker."

Horne's point is that making your workplace ADA compatible doesn't involve tearing the building down and starting over. Most accommodations can benefit the entire staff, such as allowing flexible work schedules, easier access to buildings and the option to telecommute.

Young, of the National Council on Disability, says barriers fall into two categories: general accessibility to your workplace or commercial space, including things such as stairs and doorways; and individual requests for accommodation, such as an employee who needs a special computer screen due to vision impairment. While the first category is relatively easy to comply with using the ADA guidelines, the second one needs to be handled on a case-by-case basis.

According to the ADA, a barrier is anything that limits the accessibility of your business, including: narrow parking; entrance steps; doorknobs that are difficult to grasp; narrow aisles; and fixed tables in eating areas.

The ADA prioritizes barrier removal: most important is providing access from the street or sidewalk, then providing adequate parking, then clearing access to the areas where goods and services are provided. Next, you should focus on providing access to the bathrooms, followed by public pay phones and drinking fountains.

Subtle forms of discrimination also run afoul of the law. Requiring someone to present a driver's license as identification if paying by a check, for instance, could constitute discrimination against people with severely impaired vision.  

Most of the time, accommodation is fairly inexpensive, Horne says. Even major structural changes usually don't cost more than $600. Software to make computer programs accessible to employees or customers with hearing, seeing or other disabilities is typically much less expensive, he says.

It's really best to think ahead construction, incorporating accessibility features is typically less than 1 percent of construction costs, according to the U.S. Equal Opportunity Commission. You can check out more specific accessibility guidelines at the ADA accessibility guidelines homepage.

Dig Deeper: Setting Up or Building a New Office


Complying With the Americans With Disabilities Act: The Employment Provisions

Eliminating physical barriers is easy. Eliminating psychological ones is a lot harder. The fact that the amount of disabled people in the workforce hasn't increased in the 20 years since the ADA was created has advocates still pressing the issue.

"The attitudes in the work place haven't changed as much as they need to," says Andy Imparato, president and CEO of the American Association of People with Disabilities.

ADA experts say one of the main problems is the health care system actually discourages disabled people from working. Some people, for instance, need a personal assistant to go about their daily activities. That kind of amenity is covered by Medicaid for the unemployed, but not by workplace insurance providers, Young says. Companies should review their health insurance plans to make sure they are providing a welcoming atmosphere, he says.

"For some people, going to work means losing access to that benefit, and it's creating a disincentive to work," he says.

Bayer, the pharmaceutical company, last month received the American Association of People with Disabilities' Justice for All award partially for its program placing disabled people in its workforce. Its coop program offers people a one- or two-year position alongside its management team, giving them real-world job experience they often translate into jobs with other companies, spokesman Bryan Iams says.

"What we find is that people who join the organization have been really dedicated and really go above and beyond some of our regular employees," he says.

Creating an inclusive corporate culture that gives disabled workers access to positions with training and advancement options instead of just "McJobs" is a key improvement, Horne says.

The act says a disability can't be grounds to exclude someone from a job if the candidate is otherwise qualified. That doesn't mean an employer has to give preference to applicants with disabilities.  Here are a few key tips to keep in mind when considering job candidates:

  • You can't require an applicant to take a medical examination before making an offer, or make any other pre-employment inquiry about the disability.
  • You are allowed to ask questions about the ability to perform specific job functions, experts say. As an applicant moves closer to getting hired, the employer can ask more specific questions related to task-performance issues, says Horne of the Office of Disability Employment Policy. In some cases, it may never be necessary to address an employee's disability unless the employee has performance or attendance problems, he says.
  • Maintaining written job descriptions isn't required, though they can be considered as evidence in a discrimination suit.
  • Your business is expected to make accommodations for disabled employees, such as restructuring a job, modifying a work schedule, providing readers or interpreters or even reassigning a current employee to a vacant position. The kind of accommodations needed is decided on a case-by-case basis.
  • Accommodation has its limits: an employer is not required to make changes if it would impose "undue hardship" on the operation of the business, which is defined as something requiring significant difficulty or expense.
  • If no other accommodation can be found, you should offer your employee the chance to pay a portion of the cost for providing the accessibility.
  • You don't need to make these changes until they are necessary to accommodate a specific employee. But the ADA says you should consider making the changes anyway since someone with a disability is likely to apply for a job at some point.

Dig Deeper: The Disability Advantage


Complying With the Americans With Disabilities Act: The Parking Lot and Entranceway

In day-to-day life, handicapped parking spaces are the most common reminder of the effect the ADA has had. But do you know how many you need for your size business? Or how wide they should be?

In addition to good hiring practices, Bayer was also praised for its comprehensive approach to ADA compliance, from the boardroom to the parking lot, Iams says.

Every business with a public lot needs to have a few accessible spaces, based on how big the lot is. If you have 25 or fewer spaces, at least one should be accessible; two spaces are required for 50 or fewer spaces. If you have a large lot, at least one of every eight accessible spaces must be also be van accessible.

The spaces should be the closest to the entrance, with an additional space on either side for an access aisle. You'll also need a sign with the international symbol of accessibility, located in front of the parking space mounted high enough so it won't be blocked by a vehicle.

Van-accessible spaces must have an access aisle at least 8 feet wide and designated with a "van accessible" sign.  You'll need to make sure the vertical clearance is at least 98 inches around the space. 

Even one step at the entrance can make your business a mountain of difficulty for someone using a cane or in a wheelchair. At least one entrance to your facility needs to be accessible, and you'll need signs directing people there.  Several options can help you meet this goal:

  • Use a ramp: the slope should be as shallow as possible, but the incline should be no more than a 1:12 ratio. If the slope is more than 1:20, handrails are needed.
  • Platform or folding lift: mechanical lifts are often used where there is no room for a ramp.
  • If you can't install a ramp or lift, provide access to your services in a different way, such as home delivery or curbside pickup. If you go with one of these options, the ADA says you should make sure to publicize the service so customers are aware it's available.

Dig Deeper: Anti-Discrimination Policies


Complying With the Americans With Disabilities Act: Doors and Indoor Space

National fast-casual burrito chain Chipotle faced a court case this year claiming its California restaurants had counters separating the customers and ingredients that were too high, thereby violating the ADA. But Chipotle says the claims were moot because the burrito joint had already altered their establishments to meet the law, spokesman Chris Arnold wrote in an e-mail. Over the past few years, Chipotle changed the height of its service counter by lowering it from 44 inches to 36 inches — a design incorporated into all new restaurants and major renovations over the past few years, Arnold says.

Those specific inch counts are sometimes overlooked, but ADA advocates say they're important to providing access — and avoiding a lawsuit.

Your doorways should be 36 inches wide. Even with older, narrower doors, this clearance can sometimes be obtained by using special "swing clear" hinges or by enlarging door openings. And be aware that certain types of door handles can pose a challenge: stay away from panel-type handles that require the user to grip tightly, round door knobs, handles with a thumb latch, or turnstile entrances. Stick instead with loop-type handles, lever handles or open gates.

Making sure your disabled customers can move about your business is just as important as making sure they can get inside it.  The standard for aisle space is 36-inches wide, with slightly larger space at the corners. If a 180-degree turn is needed to exit an area, a 60-inch wide turning space or 36-inch wide T-turn. If it is too difficult to meet the aisle requirements, make alternative access available, such as having staff able to retrieve items from a shelf.  Items can be placed at any height so long as a staff member is available to assist customers.

For checkout counters, a section of counter at least 36 inches long and 36 inches wide will provide access to people in wheelchairs. If this isn't possible, you can provide an auxiliary counter nearby, use a folding shelf or provide a clipboard or lapboard for use at checkout.  Checkout aisles, such as the ones grocery stores use, have different standards. A checkout aisle should be at least 36 inches wide and identified with the international symbol of accessibility. The adjacent checkout counter should be no more than 38 inches tall. Like parking, the number of aisles needed depends on the size of your store. If four or fewer aisles are provided, at least one should be accessible. If between eight and five are provided, two are needed.

Got counter service? That counter shouldn't be more than 34 inches off the floor. Self-service restaurants need enough maneuvering space for a person in a wheelchair, with a minimum aisle of 36 inches wide. And for seating:  if tables are fixed to the wall or floor, at least 5 percent need to be accessible by the use of movable chairs and a table no taller than 28 inches off the floor.

Dig Deeper: What About Disabled Customer-Access Online?

 
Complying With the Americans With Disabilities Act: Penalties and Rewards

Disregarding the ADA can cost you, sometimes big.  Sears, Roebuck and Co. in February paid a record $6.2 million settlement after being accused of illegally firing disabled employees who were on workers' compensation after being injured on the job, and not making "reasonable accommodation" to allow them to return.

Generally, an employee or customer with a disability has the obligation to raise an ADA complaint. The attorney general can bring a lawsuit against your company seeking civil penalties of up $55,000 for a first violation, and $110 for any further violation. Employee provisions, like in the Sears case, are enforced by the Equal Employment Opportunity Commission or designated state human rights agency. They could seek a variety of remedies, including reinstatement, promotion, back pay and attorney's fees.

Challenging companies on access issues is easy, says Imparato of the American Association of People with Disabilities. Discrimination against disabled people is often much more subtle than something like a sexual harassment claim, so bringing a successful case is more difficult, he says.

"You don't get the same kind of smoking gun with disability," he says.

But complying with the ADA can give you a financial break. If you're a small business with total revenue less than $1 million per year or have fewer than 30 employees, a tax credit will give you back 50 percent of your access costs per year, up to $10,250.

A tax deduction of up to $15,000 is available to all businesses in exchange for removing barriers and making alterations.

Young advises companies to be up front about their polices and to publicize their efforts regarding disability compliance.

"(They're) realizing it's not a charity piece, it's actually really great business, and they get great employees," he says.

Dig Deeper: A Father's Cause Aids Disabled Entrepreneurs


Complying With the Americans With Disabilities Act: Additional Resources

Remember: being ADA compliant isn't like selling organic groceries — there's no official certification. For businesses still not sure how to go about their disability accessibility policies, Young recommends reaching out to your local disability organization for consultation. The following resources are also available:

Last updated: Aug 5, 2010

TIM DONNELLY is a freelance writer and managing editor of Brokelyn.com. His work has appeared in Billboard, The Atlantic, Thought Catalog, and The New York Post.
@TimDonnelly




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