522
Americans With Disabilities Act of 1990 Implications for the Medical Field MARILYN GOLDEN, Berkeley, California T he Americans With Disabilities Act of 1990 (Public Law No. 101-336, Statute 104, p 327; ADA) is a landmark federal civil rights law that protects disabled persons from discrimination in employment, transportation, public accommodations, telecommunications, and the activities,of state and local government. I will summarize the act's chief requirements that affect the medical field. Those wishing further detail should contact my organization* or the Senate Subcommittee on Disability Policy.t
Defining Disability The ADA defines disability broadly: * A physical or mental impairment that substantially limits one or more of the major life activities; * A record of such an impairment; or * Being regarded as having such impairment. Medical Facilities Are Considered Public Accommodations The ADA prohibits discrimination in public accommodations. "Public accommodations" covers virtually all facilities open to the public, including hospitals, clinics, and physicians' offices-even when the office is in a physician's home-as well as other professional offices, restaurants, hotels, stores, and so forth. Most of the requirements for public accommodations go into effect on January 26, 1992. For public accommodations with 25 or fewer employees and earning gross receipts of $1 million or less annually, six extra months are allowed. For those that employ ten or fewer employees and have annual gross receipts of $500,000 or less, an additional year is allowed. The ADA includes a carefully crafted set of general prohibitions on discrimination by public accommodations. First of all, a public accommodation may not discriminate against a person with a disability in the furnishing of goods or services. This does not mean that physicians must serve disabled patients outside their areas of specialty, but it does mean that they must serve a disabled patient if they would serve a similar patient without a disability. It will be illegal to have a policy, practice, or procedure that has the effect of discriminating against a disabled person or a class of disabled persons, unless the public accommodation can show that modifying the policy or practice would fundamentally alter the nature of the goods and services of*The Disability Rights Education and Defense Fund, (415) 644-2555. 2212 Sixth St, Berkeley, California 94710. tThe Senate Subcommittee on Disability Policy. (202) 224-6265, 113 New Senate Office Bldg, Washington, DC 20510.
fered. For example, it would be illegal for a pharmacy that accepts checks in payment for merchandise to accept only a driver's license as identification, because this would discriminate against some classes of disabled persons who are unable to obtain driver's licenses. A "no pets" rule in a pharmacy must make an exception for service animals such as guide dogs. It also will be illegal to force disabled persons to participate in a separate or special program if they prefer to participate in a general program. If a hospital offers community health education classes, and it chooses to offer a special class for vision-impaired persons, it may not prevent a vision-impaired person from taking a regular class. It is also illegal to discriminate against persons because of their association with a disabled person. A clinic cannot refuse to serve a relative of a person who has the acquired immunodeficiency syndrome solely because of that relationship. Public accommodations must provide auxiliary aids and services, such as braille, amplifiers, and readers, if it would not fundamentally alter the nature of the service or pose an undue burden. For example, physicians will have to provide a sign-language interpreter to assist with communication during a medical appointment with a deaf patient, unless they can show that it would be an undue hardship. Hospitals also must provide such interpreters, as well as ensuring that a telephone display device, which is used by many deaf persons to conduct conversations by telephone, is available. If the hospital distributes written procedures on discharge to certain patients, it must provide those procedures, on request, in alternative formats such as braille or large print, for people with vision impairments. The ADA also has architectural barrier removal requirements. Existing facilities are under the modest requirement that barriers must be removed when doing so is readily achievable. "Readily achievable" is defined as easily accomplished and able to be carried out without much difficulty or expense. This is a deliberately flexible standard that requires more of larger facilities than smaller ones. A large hospital would be required to do more than a physician in solo practice. For many facilities, this will require building small- or medium-sized ramps, adding grab bars, rearranging restroom stall dividers, adding a handrail to stairs, and other modest and affordable measures. Where removing architectural barriers is not readily achievable, the operator of a public accommodation is still required to serve disabled persons through alternative meth-
(Golden M: Americans With Disabilities Act of 1990-Implications for the medical field, In Rehabilitation Medicine-Adding Life to Years [Special Issue]. West J Med 1991 May; 154:522-524) From the Disability Rights Education and Defense Fund. Berkeley, California. Reprints not available.
THE WESTERN JOURNAL OF MEDICINE * MAY 1991
*
154 *
5
ods, if these methods are readily achievable. For example, if a pharmacy has five steps and a ramp of this size would not be readily achievable, staff must bring wheelchair users' prescriptions to them at the bottom of the steps. More stringent requirements are placed on new buildings and buildings undergoing alterations, and they affect a broader scope of buildings than public accommodations: all commercial facilities are covered, including any facility where employment occurs. This broader classification includes offices that do not serve the public, as well as warehouses or factories. New buildings have to be completely accessible to persons with disabilities. This covers buildings that are first occupied 30 months or more after the ADXs enactment date. When existing buildings are undergoing alterations, the altered area must be made accessible. Also, an accessible path of travel must be provided to the altered area if the area represents a primary function of the facility, such as the waiting room or examination room. Restrooms, telephones, and drinking fountains serving the altered area must be made accessible if doing these things is not disproportionate in cost and scope to the overall alteration cost. These architectural accessibility requirements include employee areas. One exception to these rules in alterations and new construction is that in buildings under three stories or less than 280 m2 (3,000 sq ft) per story, elevators are not required unless the facility is a health care facility or shopping center.
Who Is Responsible? The prohibition against discrimination by public accommodations applies to any person who owns, leases (or leases to), or operates a place of public accommodation. Therefore, the owner of the building that houses a public accommodation, as well as the owner or operator ofthe public accommodation itself, has obligations under the ADA. If an office building contains a physician's office, both the owner of the building and the physician are required to make readily achievable improvements. Physicians make the changes to their offices and examination rooms, while the owner makes the changes to the primary entrance of the building and other general and common use areas, unless lease agreements otherwise allocate the burden between the owner and lessee. Similarly, a door attendant or guard of an office building containing public accommodations would be required, if requested, to escort a person who is blind to the elevator or to write a note to a person who is deaf regarding the floor number of a particular office. The tenant is solely responsible for aids required in the leased space. The owner of a public accommodation is liable for discriminatory policies. If a corporation that is building a series of clinics designs them to contain architectural barriers, an injunction could be brought against the corporation to enjoin the inaccessible new construction. Employment The ADXs employment requirements become effective on July 26, 1992, for employers with 25 employees or more. Employees are persons who are employed for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Two years later, on July 26, 1994, all employers with 15
employees or more
will
be
covered.
Employers with fewer than 15 employees are not covered by the ADA for their employment practices, although if they are
523
public accommodations, they are covered by the sections of the ADA described previously, with responsibilities to their patients. The ADA prohibits discrimination against any qualified person with a disability because ofthat disability, in regard to job application procedures, hiring and discharge, compensation, advancement, job training, and other terms, conditions, or privileges of employment.
Qualified Person With a Disability The ADA defines "qualified person with a disability" as one who, with or without reasonable accommodation, can do the essential functions of a job. "Essential functions" means job tasks that are fundamental and not marginal. For example, many job descriptions list a driver's license as a requirement even though the job entails no driving. In these cases, having a driver's license would not be considered an essential function of the job. In determining the essential functions of a job, courts will give consideration to an employer's judgment. An employer is free to select a qualified applicant and is under no obligation to prefer applicants with disabilities over other applicants. If, however, two applicants are equally qualified, an employer may not select the nondisabled applicant solely because of the other applicant's disability, even if the disability means the employer would have to provide some kind of accommodation. Reasonable Accommodation One of the ADXs most important requirements is that employers must make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the employer can show that the accommodation would impose an undue hardship. Accommodations can take many different forms. Making architectural changes to render facilities wheelchairaccessible; restructuring jobs; designing part-time or modified work schedules; reassigning to a vacant position; the acquisition or modification of equipment or devices; adjustment or modification of examinations, training materials, and policies; and providing readers, interpreters, or attendants are typical examples. It is important to note that many persons with disabilities do not require any accommodation whatsoever. The responsibility of an employer to accommodate an employee is limited to those accommodations that pose no undue hardship. Undue hardship means an action requiring substantial difficulty or expense; one that is unduly costly, extensive, substantial, disruptive, or that will fundamentally alter the nature of a business or program. In determining whether a particular accommodation would impose an undue hardship, factors to be considered include * The overall size of the covered entity, including number of employees, number and type of facilities, and size of budget; * The type of operation maintained by the covered entity, including the composition and structure of its work force; and * The nature and cost of the accommodation. The requirement for reasonable accommodation is a deliberately flexible standard to incorporate the situations of employers of vastly differing sizes and means. What will be
AMERICANS WITH DISABILITIES ACT
524
reasonable for one situation will not be for another. Each situation must be evaluated on its own facts and merits.
Medical Examinations and Inquiries In the past, employment application forms and interviews contained questions concerning applicants' physical and mental condition. This information often has been used to exclude applicants with disabilities, particularly hidden disabilities like epilepsy, diabetes mellitus, emotional illness, heart disease, and cancer. To eliminate these discriminatory practices and assure that misconceptions do not bias the selection process, the ADA prohibits any identification of a disability by inquiry or examination before an applicant has received a conditional offer of the job. Employers may ask questions that relate to an applicant's ability to do job-related functions but not whether they have a disability. For example, employers may ask applicants for a typing job if they can type at a certain speed but may not ask if they have a disability. Any test may be given if the skills required to do the test are actually needed on the job. Medical examinations may be conducted if they are given
after a conditional offer of employment has been made, if they are given to all entering employees in a particular category, if the results are kept confidential, and if the results are not used to discriminate against persons with disabilities. This rule meets the employer's need to discover job-related disabilities.
Direct Threat The ADA provides that if persons pose a direct threat to the health and safety of others, they are not covered by the ADA's protections and may be excluded from ajob or a public accommodation. "Direct threat" means a substantial risk to the health or safety of others that cannot be eliminated by reasonable accommodation. The determination that a person with a disability poses a safety threat must be made on a caseby-case basis and must be based on facts rather than generalizations, speculation, irrational fears, or patronizing attitudes or myths about disabilities. The ADA is of inestimable importance to millions of disabled Americans, and the disability community looks to the nation's physicians and health care providers to assist in its thorough implementation.
STAIRS Instantly say I am unwanted. Stairs. Something is happening above. Party or lecture. A table laden with food A great hall rowed with chairs. Stairs. Would destroy my plans; my dreams. I would die were this to come to pass. Stairs.
ALBERT ANDERSON. MD©) Br-onx, Newi York Reprinted with permission from the JounarBl o( Clinitcal Epidemiology, Vol. 43, 1990, Pergamon Press.
Americans With Disabilities Act of 1990 Implications for the Medical Field MARILYN GOLDEN, Berkeley, California T he Americans With Disabilities Act of 1990 (Public Law No. 101-336, Statute 104, p 327; ADA) is a landmark federal civil rights law that protects disabled persons from discrimination in employment, transportation, public accommodations, telecommunications, and the activities,of state and local government. I will summarize the act's chief requirements that affect the medical field. Those wishing further detail should contact my organization* or the Senate Subcommittee on Disability Policy.t
Defining Disability The ADA defines disability broadly: * A physical or mental impairment that substantially limits one or more of the major life activities; * A record of such an impairment; or * Being regarded as having such impairment. Medical Facilities Are Considered Public Accommodations The ADA prohibits discrimination in public accommodations. "Public accommodations" covers virtually all facilities open to the public, including hospitals, clinics, and physicians' offices-even when the office is in a physician's home-as well as other professional offices, restaurants, hotels, stores, and so forth. Most of the requirements for public accommodations go into effect on January 26, 1992. For public accommodations with 25 or fewer employees and earning gross receipts of $1 million or less annually, six extra months are allowed. For those that employ ten or fewer employees and have annual gross receipts of $500,000 or less, an additional year is allowed. The ADA includes a carefully crafted set of general prohibitions on discrimination by public accommodations. First of all, a public accommodation may not discriminate against a person with a disability in the furnishing of goods or services. This does not mean that physicians must serve disabled patients outside their areas of specialty, but it does mean that they must serve a disabled patient if they would serve a similar patient without a disability. It will be illegal to have a policy, practice, or procedure that has the effect of discriminating against a disabled person or a class of disabled persons, unless the public accommodation can show that modifying the policy or practice would fundamentally alter the nature of the goods and services of*The Disability Rights Education and Defense Fund, (415) 644-2555. 2212 Sixth St, Berkeley, California 94710. tThe Senate Subcommittee on Disability Policy. (202) 224-6265, 113 New Senate Office Bldg, Washington, DC 20510.
fered. For example, it would be illegal for a pharmacy that accepts checks in payment for merchandise to accept only a driver's license as identification, because this would discriminate against some classes of disabled persons who are unable to obtain driver's licenses. A "no pets" rule in a pharmacy must make an exception for service animals such as guide dogs. It also will be illegal to force disabled persons to participate in a separate or special program if they prefer to participate in a general program. If a hospital offers community health education classes, and it chooses to offer a special class for vision-impaired persons, it may not prevent a vision-impaired person from taking a regular class. It is also illegal to discriminate against persons because of their association with a disabled person. A clinic cannot refuse to serve a relative of a person who has the acquired immunodeficiency syndrome solely because of that relationship. Public accommodations must provide auxiliary aids and services, such as braille, amplifiers, and readers, if it would not fundamentally alter the nature of the service or pose an undue burden. For example, physicians will have to provide a sign-language interpreter to assist with communication during a medical appointment with a deaf patient, unless they can show that it would be an undue hardship. Hospitals also must provide such interpreters, as well as ensuring that a telephone display device, which is used by many deaf persons to conduct conversations by telephone, is available. If the hospital distributes written procedures on discharge to certain patients, it must provide those procedures, on request, in alternative formats such as braille or large print, for people with vision impairments. The ADA also has architectural barrier removal requirements. Existing facilities are under the modest requirement that barriers must be removed when doing so is readily achievable. "Readily achievable" is defined as easily accomplished and able to be carried out without much difficulty or expense. This is a deliberately flexible standard that requires more of larger facilities than smaller ones. A large hospital would be required to do more than a physician in solo practice. For many facilities, this will require building small- or medium-sized ramps, adding grab bars, rearranging restroom stall dividers, adding a handrail to stairs, and other modest and affordable measures. Where removing architectural barriers is not readily achievable, the operator of a public accommodation is still required to serve disabled persons through alternative meth-
(Golden M: Americans With Disabilities Act of 1990-Implications for the medical field, In Rehabilitation Medicine-Adding Life to Years [Special Issue]. West J Med 1991 May; 154:522-524) From the Disability Rights Education and Defense Fund. Berkeley, California. Reprints not available.
THE WESTERN JOURNAL OF MEDICINE * MAY 1991
*
154 *
5
ods, if these methods are readily achievable. For example, if a pharmacy has five steps and a ramp of this size would not be readily achievable, staff must bring wheelchair users' prescriptions to them at the bottom of the steps. More stringent requirements are placed on new buildings and buildings undergoing alterations, and they affect a broader scope of buildings than public accommodations: all commercial facilities are covered, including any facility where employment occurs. This broader classification includes offices that do not serve the public, as well as warehouses or factories. New buildings have to be completely accessible to persons with disabilities. This covers buildings that are first occupied 30 months or more after the ADXs enactment date. When existing buildings are undergoing alterations, the altered area must be made accessible. Also, an accessible path of travel must be provided to the altered area if the area represents a primary function of the facility, such as the waiting room or examination room. Restrooms, telephones, and drinking fountains serving the altered area must be made accessible if doing these things is not disproportionate in cost and scope to the overall alteration cost. These architectural accessibility requirements include employee areas. One exception to these rules in alterations and new construction is that in buildings under three stories or less than 280 m2 (3,000 sq ft) per story, elevators are not required unless the facility is a health care facility or shopping center.
Who Is Responsible? The prohibition against discrimination by public accommodations applies to any person who owns, leases (or leases to), or operates a place of public accommodation. Therefore, the owner of the building that houses a public accommodation, as well as the owner or operator ofthe public accommodation itself, has obligations under the ADA. If an office building contains a physician's office, both the owner of the building and the physician are required to make readily achievable improvements. Physicians make the changes to their offices and examination rooms, while the owner makes the changes to the primary entrance of the building and other general and common use areas, unless lease agreements otherwise allocate the burden between the owner and lessee. Similarly, a door attendant or guard of an office building containing public accommodations would be required, if requested, to escort a person who is blind to the elevator or to write a note to a person who is deaf regarding the floor number of a particular office. The tenant is solely responsible for aids required in the leased space. The owner of a public accommodation is liable for discriminatory policies. If a corporation that is building a series of clinics designs them to contain architectural barriers, an injunction could be brought against the corporation to enjoin the inaccessible new construction. Employment The ADXs employment requirements become effective on July 26, 1992, for employers with 25 employees or more. Employees are persons who are employed for each working day in each of 20 or more calendar weeks in the current or preceding calendar year. Two years later, on July 26, 1994, all employers with 15
employees or more
will
be
covered.
Employers with fewer than 15 employees are not covered by the ADA for their employment practices, although if they are
523
public accommodations, they are covered by the sections of the ADA described previously, with responsibilities to their patients. The ADA prohibits discrimination against any qualified person with a disability because ofthat disability, in regard to job application procedures, hiring and discharge, compensation, advancement, job training, and other terms, conditions, or privileges of employment.
Qualified Person With a Disability The ADA defines "qualified person with a disability" as one who, with or without reasonable accommodation, can do the essential functions of a job. "Essential functions" means job tasks that are fundamental and not marginal. For example, many job descriptions list a driver's license as a requirement even though the job entails no driving. In these cases, having a driver's license would not be considered an essential function of the job. In determining the essential functions of a job, courts will give consideration to an employer's judgment. An employer is free to select a qualified applicant and is under no obligation to prefer applicants with disabilities over other applicants. If, however, two applicants are equally qualified, an employer may not select the nondisabled applicant solely because of the other applicant's disability, even if the disability means the employer would have to provide some kind of accommodation. Reasonable Accommodation One of the ADXs most important requirements is that employers must make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the employer can show that the accommodation would impose an undue hardship. Accommodations can take many different forms. Making architectural changes to render facilities wheelchairaccessible; restructuring jobs; designing part-time or modified work schedules; reassigning to a vacant position; the acquisition or modification of equipment or devices; adjustment or modification of examinations, training materials, and policies; and providing readers, interpreters, or attendants are typical examples. It is important to note that many persons with disabilities do not require any accommodation whatsoever. The responsibility of an employer to accommodate an employee is limited to those accommodations that pose no undue hardship. Undue hardship means an action requiring substantial difficulty or expense; one that is unduly costly, extensive, substantial, disruptive, or that will fundamentally alter the nature of a business or program. In determining whether a particular accommodation would impose an undue hardship, factors to be considered include * The overall size of the covered entity, including number of employees, number and type of facilities, and size of budget; * The type of operation maintained by the covered entity, including the composition and structure of its work force; and * The nature and cost of the accommodation. The requirement for reasonable accommodation is a deliberately flexible standard to incorporate the situations of employers of vastly differing sizes and means. What will be
AMERICANS WITH DISABILITIES ACT
524
reasonable for one situation will not be for another. Each situation must be evaluated on its own facts and merits.
Medical Examinations and Inquiries In the past, employment application forms and interviews contained questions concerning applicants' physical and mental condition. This information often has been used to exclude applicants with disabilities, particularly hidden disabilities like epilepsy, diabetes mellitus, emotional illness, heart disease, and cancer. To eliminate these discriminatory practices and assure that misconceptions do not bias the selection process, the ADA prohibits any identification of a disability by inquiry or examination before an applicant has received a conditional offer of the job. Employers may ask questions that relate to an applicant's ability to do job-related functions but not whether they have a disability. For example, employers may ask applicants for a typing job if they can type at a certain speed but may not ask if they have a disability. Any test may be given if the skills required to do the test are actually needed on the job. Medical examinations may be conducted if they are given
after a conditional offer of employment has been made, if they are given to all entering employees in a particular category, if the results are kept confidential, and if the results are not used to discriminate against persons with disabilities. This rule meets the employer's need to discover job-related disabilities.
Direct Threat The ADA provides that if persons pose a direct threat to the health and safety of others, they are not covered by the ADA's protections and may be excluded from ajob or a public accommodation. "Direct threat" means a substantial risk to the health or safety of others that cannot be eliminated by reasonable accommodation. The determination that a person with a disability poses a safety threat must be made on a caseby-case basis and must be based on facts rather than generalizations, speculation, irrational fears, or patronizing attitudes or myths about disabilities. The ADA is of inestimable importance to millions of disabled Americans, and the disability community looks to the nation's physicians and health care providers to assist in its thorough implementation.
STAIRS Instantly say I am unwanted. Stairs. Something is happening above. Party or lecture. A table laden with food A great hall rowed with chairs. Stairs. Would destroy my plans; my dreams. I would die were this to come to pass. Stairs.
ALBERT ANDERSON. MD©) Br-onx, Newi York Reprinted with permission from the JounarBl o( Clinitcal Epidemiology, Vol. 43, 1990, Pergamon Press.
