ACI-NA Participates in the National ADA Symposium

In May of this year, James Briggs attended the 2011 National “Americans with Disabilities Act” Symposium, an annual training effort of the ADA National Network, which is funded by grants from the Department of Education, National Institute on Disability and Rehabilitation Research.  The Symposium provided the opportunity for me not only to discuss with federal agency and advocacy representatives and with individuals with varying disabilities the provision of air transportation services but also to educate them on the complexity of airports operations.  The Symposium addressed too many subjects to consider them all.  Therefore, this article will touch only some of the Symposium items that may affect airport operations.

Signed into law over 20 years ago, the Americans with Disabilities Act broadly protects the rights of individuals with disabilities in employment, access to state and local government services, places of public accommodation, transportation, and other important areas of American life.  An indicator of the extent of disabilities among the United States populace is the following table presented at the Symposium: 

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This table shows a significant portion of the population with physical disabilities and highlights the importance that everyone within the airport community – airport operators, air carriers, concessions, ground transportation, etc. – must take passengers with disabilities into consideration in making all airport services available to all passengers.

Emergency Preparedness

Typically, disaster preparedness and emergency response systems are designed for people without disabilities, for whom evacuation involves walking, seeing, hearing, and quickly responding to directions.  The result is that persons with disabilities are left behind.  Therefore, airport operators need to examine their emergency plans to ensure that the needs of passengers with disabilities are addressed, especially regarding communication and evacuation assistance.  For example, during a terminal evacuation ordered by TSA, how will the evacuation be handled for passengers who need wheelchairs or for passengers with hearing or vision impairments or even for unaccompanied minors; and should these evacuated passengers be staged in a common area to facilitate communication and services.  Even the FAA during its civil rights audits will examine an airport’s emergency plan for this coverage. 

In drafting these emergency plans, airport operators should seek assistance from people with disabilities (e.g. mobility, vision, hearing, cognitive, etc.) concerning all phases of the emergency management plan.  Recently, a federal court found that the failure of a city to address in its emergency preparedness program the needs of individuals with disabilities was discrimination against such individuals.  The court determined that the city’s failure to address the unique needs of individuals with disabilities makes these individuals disproportionately vulnerable to harm in the event of an emergency or disaster.

In another recent decision, a federal court determined that it was not reasonable to expect a county to obtain interpreters for the deaf during the initial stages of an emergency evacuation.  However, depending upon the type of event, interpreters may need to be provided as soon as reasonably possible in order to provide effective communication to the deaf.  In the instant case, the court did find that by providing interpreters in the later stages of the event, the county did provide effective communication for the deaf.

A couple of other pointers were noted during the Symposium regarding emergency evacuations.  First, service animals should be treated as part of the individual with the disability and should remain with the individual.  Second, when developing evacuation plans for unaccompanied children, extraordinary steps should be taken into account for their physical safety and protection from predation.

One of the presenters at the Symposium concluded that we don’t want a repeat of one person’s final image as he left the 80th floor of the World Trade Center on September 11, 2001:  a room full of people using wheelchairs and walkers waiting to be rescued.

Communication:

Currently, the courts are split on whether website accessibility is covered by the ADA.  However, the Department of Justice has issued an advanced notice of proposed rulemaking regarding the accessibility of web information and services.  DOJ is examining the establishment of requirements and guidance for making accessible the services, programs, and activities offered via state and local government websites site accessibility.  In addition, the U. S. Access Board is reviewing revisions to Section 508 regulations (Section 508 of the Rehabilitation Act of 1972), which require that websites of federal agencies be accessible.  In the mean time, disability advocacy groups have reach settlement agreements with several entities to make their websites accessible:  Major League Baseball, American Cancer Society, Ticket Master, etc.  For guidance on making websites accessible, the World Wide Web Consortium provides good information at its website http://www.w3.org/WAI/yourWAI.  Also, the Access Board provides guidance for compliance with Section 508 at http://www.access-board.gov/508.htm.

For airport operators, the FAA during its civil rights audits of airports will examine not only whether an airport’s website is accessible but also will examine an airport’s efforts for making aurally delivered information available to individuals who are deaf or hard of hearing and for making visually delivered materials available to individuals who are blind or have low vision.

Now, with the availability of “video remote interpretation”, businesses and public entities that have access to high-speed internet access may have a more convenient means of providing on short notice interpretive services for persons who are deaf when other means of communication (such as hand written notes) are insufficientVideo remote interpreting (VRI) servicemeans an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images.  With the availability of VRI, entities may want to consider obtaining a contract with a VRI provider in advance in order to have the technology in place so that interpretative services are available when it is needed.

In a recent lawsuit involving a fast food restaurant, a federal court permitted a case to proceed against a restaurant that failed to provide the entire menu along with prices to a customer with low vision.

Architectural Barriers:

Under the 2010 ADA Accessibility Standards issued by the Department of Justice, an alternation of a facility is a change that affects or could affect the facility’s usability and includes remodeling, renovation, rehabilitation, and reconstruction, but does not include maintenance.  Alterations must meet the ADA accessibility standards.  However, where compliance with applicable requirements is “technically” infeasible, the alteration shall comply with the requirements to the maximum extent feasible.

When renovation or alteration work is being conducted, a federal court has determined that a transit agency violated ADA when it failed to add elevators when renovating train stations and the court ordered installation of the elevators.  In rejecting the argument that the elevators were not “financially” feasible, the court ruled that the feasibility exception only applies when the nature of the existing facility makes it technically impossible to make the improvement.

Even when no renovation or alternation work is being conducted, the ADA requires that a public accommodation remove architectural barriers in existing facilities where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.  Factors to be considered in determining whether an action is readily achievable are nature and cost of the action and the overall financial resources of the entity.  The Symposium listed the following three items as the top three priorities for barrier removal:  First - access from public sidewalks, parking, or public transportation; Second - access to those areas where goods and services are made available; Third - access to restroom facilities;

Reasonable Employment Accommodations:

The regulations regarding the ADA requirements in the employment context are administered by the Equal Employment Opportunity Commission.  A reasonable accommodation in the employment context is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.  An equal employment opportunity is defined as the opportunity to attain the same level of performance or to enjoy equal benefits and privileges of employment.  Over 70% of employees with disabilities never request an accommodation. 

There are three areas where accommodations occur in the employment context:  (1) Application process, (2) Performance of the essential functions of the position, and (3) Enjoyment of equal benefits and privileges of employment.  The accommodation employed need not be the best accommodation potentially available; however, the accommodation must be effective.  The key to reasonable accommodation is the interactive process between the employer and the employee to determine the accommodations that would enable the employee to perform the essential functions of the job.

Some of the accommodations that would be considered reasonable include making modifications to increase facility accessibility, job restructuring, flexible scheduling, acquiring new equipment, providing qualified readers and interpreters, and modification of applications and testing procedures and training materials.  Some of the potential accommodations that would not necessarily be considered reasonable include eliminating essential job functions, lowering production standards applied to all employees,  providing personal use items, changing an employee’s supervisor, and excusing violation of uniformly applied conduct rules.

To ensure compliance with the accommodation requirements, the three most critical things that employers must do are (1) Update policies and processes to reflect changes to the ADA and train all supervisors and managers in these policies and processes, (2) Update job descriptions and document the essential functions of every job, and (3) Develop reasonable accommodation procedures.

Law Enforcement:

Several federal court cases have examined the response of law enforcement officers to situations that have involved persons with mental illness or cognitive disabilities.  One court determined that law enforcement officials, misperceiving the effects of a disability as illegal conduct, may be liable the ADA for arresting a person with mental illness (officer used a taser because the person was agitated).  Another court permitted a failure to accommodate claim to proceed in a case where an untrained patrol officer was dispatched and the officer ended up shooting and killing a person with a mental illness.  These cases have found a duty for LEOs to receive training regarding how to reasonably accommodate a person with a disability during the course of an encounter or an arrest. 

Conclusion:

This article can only touch some of the manner subjects addressed at the 2011 National ADA Symposium.  Even as I write, Congress and the federal agencies are considering further accessibility requirements and guidance under the ADA.  Such activity is not a bad thing.  It is only right to provide for the inclusion of everyone in the activities, programs, and services offered by both public and private entities.  Of course, improving accessibility for passengers with disabilities has the added benefit of making the air transportation system even more accessible for everyone.  An airport is a very complex piece of real estate where a “web” of evolving, and sometimes conflicting, laws and regulations distributes accessibility responsibilities among airport operators, airline operators, airport concessionaires, ground transportation providers, federal entities, and others.  Because all these activities occur on the piece of real estate “owned” by an airport operator, the airport operator is left with the responsibility of trying to coordinate the activities of all these various parties – a daunting task. 

General ADA Resources:

2011 National ADA Symposium -- http://www.adasymposium.org

Department of Justice – www.ada.gov

U.S.Access Board – www.access-board.gov

Equal Employment Opportunity Commission -- www.eeoc.gov

Dept. of Labor, Office of Disability Employment Policy -- www.dol.gov/odep/

FCC Disability Rights Office -- http://www.fcc.gov/cgb/dro

ADA Disability and Business Tech. Asst.Center -- www.adata.org/dbtac.html

Job Accommodation Network -- www.jan.wvu.edu

National Disability Rights Network -- www.ndrn.org

Cornell University Employment & Disability Institute -- www.hrtips.org

If you have any questions concerning the Americans with Disability Act, the Air Carrier Access Act, or the implementing regulations, please contact James Briggs, ACI-NA’s Vice President of Legal Affairs.