ST~ZZOY THE AMERICANS WITH DISABILITIES ACT: WHAT IT MEANS TO SMALL BUSINESS OWNERS Kathleen C. Brannen Terrence M. Begley Creighton University ABSTRACT Small Business owners with as few as 15 employees come under the provisions of the Americans With Disabilities Act on July 26, 1994. A small business not affected in the employment area may need to provide the disabled customer access to the business. Successful small business strategies for the future should systematically incorporate not only the philosophy of accommodation for the disabled, but realistic auention to derails of compliance and competitiveness. This paper reviews terms and conditions thar will aid the business compliance owner in planning for compliance with the ADA. Additional sources of help are also provided. INTRODUCTION The Americans with Disabilities Act of 1990—a major new civil rights law-makes it illegal to discriminate against individuals with disabilities in employment, public accommodation, public services, transportation, and telecommunications. This legislation, known as the ADA, extended coverage to businesses with as few as 15 employees on July 26, 1994. The purpose of this article is to inform the small business owner (SBO) or consultant of the ADA concepts that are relevant to the small business, the problems areas that require awareness and comingency planning, and some sources of additional expertise. The need for ADA legislation was reconfirmed in a recent survey by the National Organiuation on Disability which indicated that two-thirds of disabled Americans between ages 16 and 64 are unemployed, a proponion that has not changed since 1986 ("Smaller Firms", 1994). The spirit of this legislation is conveyed by former Attorney General Richard Thornburgh (pp. 803-804): Do not let this bright moment in modem American history escape you....The passage of ADA is truly another emancipation, not only for the 43 million Americans with disabilities who will directly benefit but even more so for the rest of us, now free to benefit from the contributions that these Americans will make to our economy, our communities, and our individual well-being. The SBO can create an ADA plan as a component of a competitive strategy to employ the disabled and to improve the accessibility of disabled people as employees and as consumers. The ADA affects small businesses panicularly in the areas of public access and employmcnt. This article will help the small business owner who does not have ready 79 access to the more sophisticated and expensive expertise of human resource consultants, attorneys, and architects, but who still must comply with the requirements of the legislation. Although small firms will be protected from "undue hardship," a successful business strategy for the competitive 1990's should give realistic attention to the details of compliance and competitiveness. This article is divided into Uuee main sections and two appendices. The first section discusses how to comply with public access requirements by making your premises more accessible to disabled customers and employees. In the second section we discuss issues concerning disabled employees such as when an employer has to be in compliance, what constitutes a disability, and how to clarify job descriptions and specifications. The third section provides guidelines for incorporating ADA planning into small business strategy. The appendices list sources of help for hiring and providing public access to the disabled. Thc business owner should consider two categories of changes for complying with thc ADA: (I) hiring disabled employees, and (2) serving disabled customers. PROVIDING PUBLIC ACCESS DeCini ion-Public Accommodauon Public Accommodations and Services Operated by Private Entities is covered by Title III of thc ADA. Section 302 states that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, pnvileges, advantages, or accommodations of any place of public accommodation by any person who owns, lcascs, leases to, or operates a place of public accommodation. lt is not yet clear what level of accommodation will be required. However, Kelly and Albcns (1990, p. 680) emphasize that: Unlike Title I, which prescribes a minimum number of employees, there is no such limitation in TiUc Ill. Consequently, cvcn a very small retail establishment is covered by the ADA and will have to conform to the pertinent public accommodations provisions. Large organizations will comply with Title III by using the services of an architect. Thc small business owner may also need an architect, but may be able to achieve ADA compliance with a simpler strategy. When making building changes, specify that the conuactor is responsible for meeting ADA specifications or other compliance requirements. Renegotiate leases to put the burden of building compliance on the owner. Existing comracts of all kinds need to be reviewed by an attorney to determine whether they are impacted by the ADA (Barbe', Cheek, and Lacho, 1992). When thc small business owner evaluates the structural changes needed to provide public access to customers, he or she should also consider whether specific groups of 80 disabled consumers should become a target market. At the same time, employing disabled individuals could become part of a suategy to best serve some groups of consumers. Common Barriers Faced B The Disabled Small business owners need to understand barriers faced by the disabled. Here are some examples: 'arking-Spaces too narrow, spaces not level, a curb or step located between the space and the walk, reserved parking signs not visible. 'Approach-Stree( between parking and entrance has no curb-cut or traffic signals, there are steps between sidewalk and entrance level. Entrance-Doors too narrow to admit wheelchair, revolving doors next to locked swing doors, distance between paired doors too short for wheelchairs, excessive prcssure needed to open the door. 'tairs-Steps with open railings or projected nosings to trip users on crutches, handrails too high or too low, or handrails too difficult to grasp. 'levatorsi Entrance too narrow for wheelchairs, cab size too small for wheelchairs, door level not aligned with lioor level, controls out of reach, controls not marked with Braille indicators, no audible signal for upward or downward travel. 'Floors-Coverings made of a slippery material or deep-pile carpeting, or different levels connected by steps only. Restrooms-Located on another floor not connected by elevator, twin doors situated too close together for wheelchair access, inadequate wheelchair space. 'ater Fountains-Spout and controls out of reach, placed in alcove too narrow for wheelchair access. 'oin-Operated Telephones-Booth is too narrow, controls are too high, and amplification is not provided. 'Controls-Controls for windows, draperies, heat and light, and fire alarms are out of reach of wheelchair occupants. 'Hazards-Doors to unauthorized areas not identifiable by touch alone, uncovered floor panels, low ceilings and fixtures. 'larms-Fire alarms that produce audio warnings only, or exit signs not readily identifiable. gl 'Other Typical Barriers-Storage cabinets or work surfaces too high or too low, clearance for whee!chairs under work surface or dining tables. Ways to rcmove barriers and provide reasonable accommodation are making their way into thc literature, especially the trade journals. Some examples follow: 'eposition Shelves or Telephones. Shelf and telephone heights should be at most 48 inches from the finished lloor. 'Widen Doors. Minimum clearance width of 32 inches when the door is open 90 degrees is the standard, with enough room for the wheelchair to maneuver through the door. Doors should open in, not out, for wheelchair access. 'djust Aisles. Aisles must be 36 inches wide, and self-service areas (such as buffets and salad bars) must be no higher than 54 inches. 'pgrade Emergency Alarms. Alarms should provide both audible and visual warnings. 'Position Grab Bars in Toilet Stalls. Grab bars should be 36 inches above the floor and should ideally be placed on all four walls securely around the toilet. 'nsulate Pipes Under Sinks - Hot water and drain pipes should be insulated to eliminate direct contact with them. 'nstall Adjustable Keyboard Pads. This allows workers to adjust thc keyboard to their correct iyping hcighu 'Use Ergonomically Adjustable Chairs. Non-wheelchair workers may need to adjust their seating height. 'Install Adjustable Lighting. Workers may need to adjust light in the workplace. 'onsider Disability-Specific Hardware and So(Iware. Users may control a compuicr by winks or nods. Software can magnify screen images, translation technology can convert screen images into spoken words, or voice-input devices may accommodate specific disabilities. 'Install Ramps or Provide Cups. The disabled can be helped to reach the water cooler. 'Purchase a TTY (teletypewriter) device. The deaf can communicate over the tclcphone system. Many firms have made their TTY lines toll-free to encourage their usc. 82 'Provide Personal Service. When barrier removal is not readily achievable, the SBO may be able to accommodate the disabled person by providing personal auention to a disabled customer by such means as reading a menu or a price tag to a blind customer or bringing merchandise to a person in a wheelchair. Public accommodations should install TTY devices in airports, for example, vibratmg alarm clocks in hotels, and strobe lights for smoke alarms in restaurants. All facilities should retrofit door knobs to lever-handle locks. In addition, some consulting firms that can help with special problems are listed in Appendix A. BASIC ADA CONCEPTS FOR EMPLOYING THE DISABLED Every SBO should consider the human resources needed to implement an ADA compliance strategy. The following descriptions will aid in selecting the implementation suategies that benefit the Birm and comply with the ADA. ADA Covera e for Em lo ers The provisions of Title I govern employment, and the EEOC has published a technical assistance manual for employers and persons with disabilities. Since this legislation extends io the millions of smaller firms with as few as fifteen employees, it is important that these firms understand how to comply with the law. Definition-An Em lo er For the first two years the act covered firms with 25 employees; after July 26, 1994: (A) IN GENERAL--The term employer means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, employmem agencies, labor organizations and joint labor- managcmem committees. A special provision is included allowing employers to give religious-based preferences and requires that applicants and employees conform to their religious tenets (29CFR Part 1630.16(a)). ~Of -D bI The definition of disability was borrowed from the Rehabilitation Act of 1973 which covers federal contractors. A disabled person has: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (8) a record of such an impairment; or 83 (C) being regarded as having such an impairment. WWht WOb I Below are some practical examples of what does and does not constitute a disability under the ADA. DISABILITY NOT A DISABILITY Obesity A Temporary Condition Cerebral Palsy Transvestism Epilepsy Voyeurism Muscular Dysuophy Transsexualism Multiple Sclerosis Pedophilia Diabetes Bisexuality Learning Disabilities Homosexuality Hearing Aid Use Exhibitionism Manic Depression Compulsive Gambler Mastectomy Victims Pyromania&:s Recovered Alcoholic Current Alcoholic Rccovercd Drug Addict Current Drug Addict Rccovcrcd Nervous Breakdown Kleptomania Current and Rccovercd Cancer Gender Identification H I V-positive Disorder Definition- uglified Individual with a Disabilit The term qtdttlified individudtl with a disability means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to the employer's judgment as to what functions of a job are esscnual, and if an employer has prepared a wriuen description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essenual functions of the job. This is onc of the most imponant secuons of the ADA for the small business owner. ln order for the SBO to know if a disabled person can handle a particular job, the job requirements must be known. SBO's seldom have written job descriptions and job specifications, but now is the ume to add this professionalism to the small firm. There are two reference books, available at any comprehensive library, to assist in this task. They are d ~Off~kIT I dd 0 ~ IO 0 dk k.t 0 published by thc U.S. Department of Labor. 84 J~bx Job analysis is the process of breaking down a particular job into its various pans. It is used to separate the essential job functions from the nonessential job functions of a particular position. Job analysis should be used for all jobs but is particularly useful when considering the job in relation to disabled applicants. The SBO should ask these questions when preparing a job analysis (Loudon, 1991) 'ow is this msk performed? What methods, tools, or icchniqucs are used? 'ow often is the task performed? Are those tasks performed less frequently as important to success as those tasks done more frequently? 'ow much time is allowed to perform the task? 'hy is the task performed? 'here is the task performed? 'ow is the suiiccss o( the msk measured? 'hat happens if the task is performed wrong? 'hat aptitudes are necessary for the task? 'hat knowledge is necessary for the task? 'hai skills are necessary I'or the task? How much physical exertion is required for the task? A Need for Job Descri tions. An employer's ability both to define "the essential functions" of a particular job and to establish that a qualified disabled individual cannot perform these functions will be critical m defending against a charge of discrimination under the ADA. This provision represents an important legislative concession to employers. In theory, employers can control their own destinies by determining in advance the physical and mental qualification requirements for panicular jobs. Whenever possible, employers need to assess carefully the essential and noncsscntial aspects of each job. For some jobs, the best approach may be to itemize and prioritize all the duties of each position so that a written job description is clear, concise, and accurate (Creasman gt Butler, 1991). Job descriptions are considered evidence of essential funcuons of a job, and should be prepared before advertising the position or interviewing applicams (Loudon, 1991). Definition-Reasonable Accommodation Thc ADA requires thc employer to make reasonable accommodation for an otherwise qualified individual with a disability. Reasonable accommodation may include the following (Creasman dk Butler, 1991): Making exisung I'acilities accessible to and usable by thc disabled, including removing existing barriers; Restructuring jobs, work schcdulcs, and assignments; 'Acquiring and modifying equipmcnt; 85 'djusting or modifying examinations, training mateiials, or policies; 'Adopting new procedures; 'roviding qualified readers or interpreters; and Making other similar accommodations Definition-Undue Hardshi Employers are noi required to make an accommodation that would cause an undue hardship. The term undue hardship means an activity that is unduly costly, extensive, disruptive, or that will fundamentally alter the nature of a business operation. SBO's are protected because of their size and financial resources from undue hardship when it involves "significant difficulty or expense". These factors include (I) the nature and cost of the accommodation; (2) the size, type, and financial resources of the specific facility where the accommodation would have to be made; and (3) the size, type, and financial resources of the covered employer. What should the SBO understand about the previous sections? First, the essential ~bf ' k I I' I I hd p ld p ' dl blllly Idp f d jbf . A~bd I ~ I Id Iljbf A~bd ' ' I 'f 'jb'yl I Pl d. If Ih I q llfld individual with a disability applies I'or a position, the ADA requires the employer to make reasonable accommodation, if the accommodation would not cause an undue hardship. INCORPORATING ADA PLANNING INTO SMALL BUSINESS STRATEGY Changes in thc business to comply with the requirements of the ADA should be incorporated imo the overall business strategy. Implementation of the following ideas and procedures will noi only protect the small firm from possible litigation but also aid in the professional management of the firm and the achievement of successful long-term goals. ADA Implemcmation Checklist for the Small Business Owner: 'he term is disabled. The SBO should become accustomed to using the term disabled instead of handicapped. Lindsay (1989-90, p. 334) quotes the Senate Labor Commiuee rcport: The use of the term disability instead of handicap represents an effort by the Committee to make use of up-to-date, currently accepted terminology...to many individuals with disabilities the terminology applied to them is a very significant and sensitive issue. 'Avoid preconceived ideas. Most discrimination against the disabled is based on assumptions about work and the portrayal of disabled persons as helpless. 86 'ost the proper notices g (S.105). Every employer must post notices in an accessible format to applicants and employees which describe the applicable provisions of the ADA. The format is the same as prescribed by Sec. 711 of the Civil Rights Act of 1964 (42 U.S.C. 20003-10). 'nderstand essential job functions. An employer must know the essential functions of a job in order to determine whether or not a disabled person can perform the job. A clear understanding of these functions is related not only to the ADA, but also to the overall division of labor in the firm. Analysis for the ADA may provide insight into new divisions of labor that will also accommodate firm growth. Be open to reasonable accommodation. Disabled people know what types of accommodations are efl'ective. According to CCH (1990, p. 101): "Stereotypes about disability can resuh in stereotypes about the need for accommodations, which may exceed what is actually required. Consuhations between employers and the persons with disabilities will result in an accurate assessment of what is required in order to perform the job duties." Use this five-step process for job accommodations: 1. Determine that the individual is minimally qualified; 2. Obtain job and task information by listing each step of a job and the requirements for performing each step; 3. Determine the job modification needs by examining the requirements of the job and the capabilities of the potential worker; 4. Explore alternatives with the worker; 5. Select the most effective modilications. 'Use Appropriate testing. Employers will have to (I) review and revise tests, the way tests are administcrcd, other selection criteria, and practices to make sure they do not discriminate against disabled individuals, (2) use tests or selection criteria that are job-related, (3) use employment entrance exams only if they are given to all employees, regardless of disability. 'ollow guidelines for those with diseases. Employees with infectious and communicable diseases can be transfcrrcd from food handling jobs only if the diseases are on the list of infectious and communicable diseases published by the Secretary ol'ealth and Human Service and if risk of harm cannot be eliminated by reasonable accommodation. Practices dealing with AIDS employees must follow the CDC (Centers for Disease Control and Prevention) guidelines. Consider drug testing. The ADA legislation does not take a position on drug tesung, and drug testing is not considered a medical examination for ADA purposes. Consequently, employers can require employees to conform with Drug-free Workplace Act requirements. 87 'Know that other legislation supports ADA. The ADA does not invalidate or limit other federal, state, or local laws that give individuals with disabilities greater or equal protecuon. 'e a can-do manager. Remember that entrepreneurial managers are concerned with solving problems, not with inventing reasons why something can't be done. Passage of the ADA requires a change in the thinking of Americans that has been a long time in coming: Over fony years ago, the Department of Labor conducted a study and found that there were no significam differences in producuvity, injuries on the job, absenteeism, or voluntary resignation between disabled and non-disabled workers" (Marlow dt Marlow, 1990, p. 97). The disabled I'ace massive discrimination according to the Congressional Task Force on the Rights and Empowerment of Americans with Disabilities, and the disabled are being thwarted as much by obsolete attitudes as by inaccessible environments (Pati and Stubblcficld, 1990). In addition, excluding from the workforce the 10 million employable disabled citizens out of thc population of 43 million disabled costs society $300 billion annually (Pati and Stubblcfield, 1990), at a cost to the federal government of $ 1 billion annually (Loudon, 1990). Although the ADA became effective on July 26, 1990, it was only on July 26, 1994, that the ADA was cxtcndcd to thc estimated one half million businesses employing 15 to 24 workers. Auorney General Janet Reno, at a ceremony designed to educate the newly covered employccs, told disability advocates that "too many have taken a wait-and-see uuitudc to determine whether the Justice Department is serious about forcing compliance. I have just one answer: wc are serious" ("Disabilities Act," 1994). The need to comply with thc ADA provides an opportunity to rethink our approaches to "the way we have always done it." Thc regulations and their interpretations are confusing and voluminous. But the law will not go away, and the SBO can begin by using this article to incorporate ADA thinking into your business strmcgy. What the ADA means to the small business owner is another way to bc more compcutive in both thc dclivcry of goods and services and in the creation of a motivating work cnvironmem for employees. As Attorney General Reno remarked, "lt's not hard to comply with thc ADA...because the ADA isn't just the way things should be. Now it's thc law" ("Disabilities Act," 1994). gg REFERENCES Ahon, R. J. (1992, October). Americans With Disabilities Act Impacts Building Design and Construction. National Real Estate Investor, 123-124. Ballengcr, Joc, Franklin, Geralyn McClure & Robinson, Robert K. (1992). Accommodating thc Disabled Customer: Perceptions of Small Business Owners and Managers Toward the Law. Journal of Business and Entre reneurshi, 4(1), 43-51. Barbc', Dcborah Cox, Cheek, Ronald G., & Lacho, Kenneth J. (1992). What's A Small Business Owner to Do? A Framework and Guidelines for Complying with Title I- Employmcnt of the Americans with Disabilities Act of 1990. Journal of Business ~66 61, 4(1), 33-63. Breuer, N. L. (1993). Resources Can Relieve ADA Fears. Personnel Journal, 72, 134. CCH Ediiorial Staff. (1990). CCH's Ex lanation of the Americans with Disabilities Act of 1990. Chicago. Creasman, R. L. Jr., & Butler, P. G. (1991). Will the Americans with Disabilities Act Disable Employers? Labor Law Journal, 42, 52-55. Disabilities Act Umbrella Covers More Small Businesses. (1994, July 26). Omaha World- Herald, 12. Jacobs, R. B. (1990) The Americans with Disabilities Act: What Should Employers Do Now? (Special Repon On The ADA). Commerce Clearing House, Inc. Kelly, E. P. & Alberts, R. J. (1990). Americans with Disabilities Act: Undue Hardship for Private Sector Employers. Labor Law Journal, 41, 675-684. Lindsay, R. A. (1989-90). Discrimination Against the Disabled: The Impact of the New Federal Legislation. Em lo ee Relations Law Journal, 15, 333-345. Marlow, E. K. & Marlow, N. D. (1990). Employment of the Physically Handicapped and thc ADA. Journal of Business Su'ate ies, 7, 96-104. Mcisingcr, S. R. (1990, Winter). The Americans with Disabilities Act of 1990; A New Challcngc for Human Resource Managers. HR, 1-16. Mcllo, J. A. (1993). Employing and Accommodating Workers with Disabilities: Mandates and Guidelines for Labor Relations. Labor Law Journal, 44, 162-170. Pati, G. C. & Stubblcfield, G. (1990). The Disabled Are Able to Work, Personnel Journal, 69, 30-34. Smaller Firms In Target Zone of Disability Act, (1994, July 10). Omaha World-Herald, Gl. Snyder, D. A. (1993). Qualified Individuals with Disabilities: Defining the ADA's Protected Class. Labor Law Journal, 44, 101-109. Thornburgh, R. (1990). The Americans with Disabiliues Act: What It Means to All Americans. Labor Law Journal, 41, 803-807. A 3 131 1 ADA, (1993, F 6 ~). ~MR 1,33-33. 89 APPENDIX A SOURCES OF HELP FOR HIRING THE DISABLED 'elp through Industry Retraining and Employment (HIRE) will pay for the cost of training a disabled worker up to 50% of the new worker's hourly wage for up to six months. 'atabanks and hot lines ABLEDATA is a databank that lists reasonable- accommodation equipmcnt for disabling conditions and is available online at (916) 654-8121. Job Accommodation Network is a clearinghouse of jobs and accommodations ncedcd by thc disabled to perform those jobs is available at (800) 526-7234 (Breuer, 1993). 'Software: Crosswalk and Descripuons Write Now! are examples of software packages used to del'ine essential job functions in creating job descriptions (Breuer, 1993). Pro ram and Su rt Services Program and support services are designed to help the disabled person enter and become cstablishcd in the workplace. Employee support services are set up by rehabilitation agencies and busincsscs. 'he Federal Job Accommodation Network (JAN), offers free advice to employers (800) 526-7234. A database provides practical solutions for adapting jobs for disabled applicants and employccs. Information includes job modifications, technological devices, and various work place adoptions. (Marlow & Marlow, 1990). 'State Commissions. Programs which instruct business on ADA implications are being conducted by rehabilitation commissions of each state and by state commissions 1'or the blind (Ballenger, Franklin, and Robinson, 1992). 'nusual equipment needs can be met. A disabled individual who requires supponing cquipmcnt typically will bring it to the workplace. Sources of equipment include state funding or insurance funding. Rehabilitation programs may provide the person with all the equipment necessary to be productive in the job (Jacobs, 1990). 'echnical assistance is available. Federal agencies with responsibility for implementing thc ADA must provide technical assistance manuals for each Title of this act. The Equal Employment Opportunity Commission (EEOC) publishes a 90 technical assistance manual for employers and disabled persons who have employment questions. 'ublic Law 101-336-July 26, 1990. The text of the ADA is available from the Superintendent of Documents, Government Printing Office, Washington, DC 20402 for 51.50. 'ommerce Clearing House Publication. CCH's Ex lanation of the Americans with Disabilities Act of 1990 can be ordered from Commerce Clearing House, Inc., 4025 West Peterson Ave., Chicago, IL 60646 for a nominal fee. See also the ADA special report by Jacobs (1990). 'iterature Sources. A sample of the literature by topical area is presented below. National Real Estate Investor-advice and resources for those involved in building design and construction (Alton, 1992). 'LIILL I I—AOA I I g d gl y IC & Butler, 1991; Kelly k. Alberts, 1990; Thomburgh, 1990; Mello, 1993; Snyder, 1993). MMM g I — y g dI "AT Ikg I AITA'1993). 'Le al and Human Resource Ex erts —(Jacobs, 1990; Lindsay, 1989-90; Marlow & Marlow, 1990; Pati k Stubblelield, 1990; Meisinger, 1990) 91 1 APPENDIX B FINANCIAL INCENTIVES TO PROVIDE PUBLIC ACCESS There are several sources of iinancial aid to help the small business owner provide public access to the disabled: The Targeted Jobs Tax Credit Program targets newly disabled workers. In the first year a company can claim 50 percent of the first $6,000 paid in wages as a tax credit. Twenty-five percent of the $6,000 paid in the second year is deductible. Thc credit is limited to 90 percent of the company's tax liability, 'he Internal Revenue Code as amended in 1990 allows a deduction of up to $ 15,000 pcr year for the removal of qualified architectural and transportation hangers. 'elp for small business is provided by the IRS for cenain costs of compliance with the ADA. An eligible small business is one whose gross receipts do not exceed $ 1,000,000 or whose workforcc docs not consist ol'ore than 30 full-time workers. Qualifying businesses may claim a credit of up to 50 percent of eligible access expenditures thut cxcccd $250 but do not exceed $ 10,250. Examples of eligible access expenses mcludc thc necessary and reasonable costs of removing architectural, physical, communications, and uansponation barriers; providing readers, imerpreters, and other auxiliary aids; and acquiring or modifying equipment or devices (ADA Handbook, Appendix hk10). 92