Preventative Measures and Reasonable Accommodations

Preventative Measures and Reasonable Accommodations Making physical modifications within the existing work environment is a healthy start on making the workplace more accommodating for future employees who may have disabilities. Even though employers are not required to make workplace changes until an accommodation is actually necessary, they do have an obligation under Title I of the American Disabilities Act (ADA) to provide reasonable accommodations for qualified job applicants with disabilities to participate in the hiring process. Therefore, taking preventative action will reduce the risk of noncompliance when interviewing people with disabilities and may limit future exposure to ADA litigation.

Reasonable accommodation has as many remedies as there are disabilities and attempting to prepare for every possibility would be illogical. Businesses are encouraged, however, to proactively evaluate the workplace and create a plan identifying the removal of barriers. The plan does not have to be executed overnight, but it gives the company a long-term direction on how it will deal with physical barriers. Since the ADA does not require making reasonable accommodations that are an undue burden, barrier removal or modifications can be made in proportion to the business’ resources.

Identifying and Removing Barriers

To begin, HR management can hire a reasonably priced evaluation consultant to assess the facility, identify problem areas, and provide recommended solutions. In an office environment, basic areas of analysis should include parking, the building entrance, reception area, workstations, flooring, doorways, bathrooms, signage, and shared areas, such as break rooms and recreational facilities. The EEOC has reported that when it comes to reasonable accommodation, the agency’s experience is that 20 percent of the modifications or changes cost nothing and more than 50 percent cost between $1 and $500, with a median cost of $240.

Whether an employer has an obligation to eliminate barriers outside the work environment can be a gray area. For instance, if parking is provided for all employees, then reasonable accommodation must be made for employees with disabilities. If parking is not normally provided, it can be argued the employer has no accommodation responsibility outside the workplace or, conversely, that they do have an obligation for barrier-free access to the building so an employee with a disability can gain entry to the workplace. At this point, neither argument has necessarily been proven right.

HR management can identify common barrier problems by asking the following questions:

• Parking: Is the route from the parking area to the building entrance easily accessible? Are there curb cuts for wheelchair access? If the building entrance has stairs, has a ramp been installed or is it possible to install one? Is there a wheelchair-accessible door? Is there elevator access to the workplace?
• Office entry and reception area: Does the entrance to the workplace allow people with disabilities easy access? Does the doorway allow wheelchair access? Is the path from the door to areas such as the reception desk, a conference room, or a workstation wide enough and free of obstacles?
• Workstations: Are the work surfaces adjustable for height and angle? Can the office chairs be properly adjusted? Are the positions of the computer and keyboards adjustable? Can lighting be adjusted? Does the work area accommodate employees with mobility impairments by having the proper clearance between the furniture? Are electrical outlets easily accessible? Can a workspace be adapted for employees requiring assistive technology (e.g., by adding more outlets or additional surface area)?
• Flooring: Does the flooring make any abrupt changes from room to room? Is the flooring in common areas a non-slip surface? Does the carpet pile and texture create difficulties for wheelchair users or employees with mobility impairments? Are there step-up areas that may need ramps?
• Doorways: Are there any areas accessible only through revolving doors? Is it possible to change door handle heights and shapes for easier grasping? Are there areas where electronic doors should be considered? Are doorways wide enough for wheelchairs?
• Bathrooms: Is there at least one handicapped-accessible stall with a grab bar? Is there enough room to maneuver a wheelchair? Is there at least one sink that can be accessed by wheelchair users or employees with height disabilities? An accessible drinking fountain? Towel dispensers?
• Signage: Is the business’ entry signage required to comply with ADA requirements for contrast, size, and tactile lettering? Are common areas such as restrooms, break rooms, and conference rooms identified with internationally recognized visual symbols? Has tactile lettering been incorporated? Does other signage conform to ADA guidelines on permanent, directional, overhead, and temporary signs?
• Break rooms and recreational facilities: Are the employee cafeteria, lounge, break room, and other areas shared by co-workers accessible to all employees? If employees have an on-site recreational facility, is it accessible to employees with disabilities? Does the furniture or equipment arrangement create obstacles? Are there physical barriers that need to be removed or modified? Are vending machines positioned for accessibility?

There have been many ergonomic studies done regarding the proper height and angles of computer equipment and chairs for office workers. A little investigation and modification in this area will help prevent work-related injuries caused by repetitive motion, such as typing, or by extended periods of sitting in one position. To support the changes being made to the physical environment, the business may consider assistive technology, where appropriate, to help prevent office injury and accommodate physical impairments. This technology can include a trackball or joystick mouse, keyboards for various motor impairments, word prediction software to minimize keystrokes, screen magnification software, and voice-activated software.

Job Modification as Prevention

In addition to evaluating physical barriers, HR management may find it useful to evaluate and alter jobs that require constant repetitive motion, standing for extended periods of time, awkward working positions, sustained exertion, and other situations in which employees are prone to injury. Jobs that can be modified to help employees reduce the chance for injury also reduce the business’ risk for future ADA compliance or litigation.

Tax Credits for Your Efforts

To encourage businesses to make work environments more accessible to people with disabilities, the Internal Revenue Code includes two provisions specifically aimed at the reasonable accommodation requirement. Businesses with $1,000,000 or less in revenue or with fewer than 30 employees may take advantage of the Small Business Tax Credit, which allows a tax credit of up to $5,000 per year for the cost of providing reasonable accommodations, such as sign language interpreters, readers, materials in alternative formats, adaptive equipment, and the modification of existing equipment or the removal of architectural barriers.

The Architectural/Transportation Tax Deduction allows an annual deduction of up to $15,000 for expenses related to removing barriers. This can include providing accessible parking spaces, ramps, and curb cuts; providing wheelchair accessible telephones, water fountains, and restrooms; making walkways at least 48 inches wide; and making entrances accessible. It is advisable to consult a tax consultant prior to making workplace changes.

ADA and Litigation

According to the U.S. Department of Justice, the ADA has resulted in a surprisingly low number of lawsuits since its enactment in 1990. In fact, over the five-year period between 1997 and 2001, of the total number of suits filed by the EEOC, 12.8 percent were disability cases. Further, the Supreme Court has acted in previous years to narrow the scope of impairment and limit the protection Title I provides employees with disabilities. Last year, however, two federal appellate courts decided that employees with disabilities are allowed to sue a company for workplace harassment under the ADA. Successful claims such as these have opened the door to the same monetary damages available for sexual harassment under Title VII of the Civil Rights Act of 1964. Voluntary and proactive compliance may be well worth the time and money spent. Jeffrey Stevens is a member of the Parr Waddoups Brown Gee & Loveless litigation group. He focuses his practice on commercial litigation, design and construction litigation, and insurance law disputes. Mr. Stevens has represented a number of clients in matters regarding accessibility and accommodation and has significant trial and mediation experience, as well as extensive experience in the construction industry. Date posted: 3/04/03