Sharing the Dream: Is the ADA Accommodating All?

Findings and Recommendations


CHAPTER 1: THE ROAD TO THE ADA

Findings

CHAPTER 2: THE EFFECTS OF THE ADA

Findings

Recommendations

2.1       The Equal Employment Opportunity Com mission (EEOC) and the Department of Justice (DOJ) should continue their aggressive efforts in implementing and enforcing the mandates of the ADA.

2.2       The EEOC, the DOJ, and the Department of Transportation must become more proactive in their efforts in enforcing the ADA beyond the traditional areas of coverage and in educating the public on the requirements of and rights provided by the ADA.

Findings

Recommendations

2.3       The DOJ should play a more proactive role in enforcing the mandates of Titles II and III of the ADA, including:

implementing a more effective complaint investigation process;
adopting a procedure to actively seek out test cases in nontraditional areas of enforcement;
undertaking compliance reviews to monitor compliance; and
using testers as a means of monitoring compliance with the ADA.

2.4       The DOJ should be allocated additional funding to provide training, education, and technical assistance for mid-size to small businesses so that they have adequate access to information on the mandates of the ADA.

Finding

Recommendation

2.5       The National Council on Disability and the National Institute on Disability and Rehabilitation Research should undertake comprehensive studies focusing on employment rates, employment trends, and types of employment for individuals with disabilities. These studies should also include different types and severities of disabilities to ensure that quantitative data exist to make real comparisons of employment rates and employment opportunities for individuals with disabilities.

Finding

Recommendation

2.6       There should be continued efforts to study the overall effects of the ADA. The National Institute on Disability and Rehabilitation Research should undertake a comprehensive nationwide study of the effects of the ADA on individuals with disabilities and on businesses and employers who must comply with the ADA.

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Recommendations

2.7       Congress should provide businesses and employers that incur costs in complying with the accessibility and reasonable accommodation provisions of the ADA tax credits and other tax incentives that correlate directly with the costs incurred by them up to the actual costs incurred.

2.8       The EEOC, the DOJ, and other federal agencies charged with implementing the ADA should increase educational efforts aimed at advocacy groups and potential ADA claimants in an attempt to ensure that these groups and individuals have a clear understanding of the level and type of evidence needed to successfully maintain an ADA claim.

Finding

Recommendation

2.9       In an effort to further provide incentives for returning to employment, the amount of cash disability benefits should be tailored to an applicant s ability to work with a reasonable accommodation or to be rehabilitated and returned to work. After a meaningful phase-in period, the benefits could be reduced or eliminated depending upon the individual's ability to work, with the proper work supports or accommodations.

Finding

Recommendations

2.10     The SSA should educate its staff on the available work incentives and provide training to staff on how to explain these work incentives so that applicants understand them.

2.11 At the time of application, the SSA should ensure that all beneficiaries are informed about the work incentive initiatives.

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Recommendations

2.12     The SSA should do comprehensive research on the factors that cause individuals with disabilities to remain on the Social Security rolls. This research should distinguish between individuals who cannot work and those who may be able to work with reasonable accommodation or appropriate rehabilitation.

2.13     The SSA work incentive initiatives should extend the length of time that cash benefits are offered while the person is re-entering the work force. These benefits should be offered until the beneficiary can become reasonably self-sufficient, which is a concept the SSA should define with input from all affected stakeholders.

2.14     The SGA level should be raised. The amount should be higher than the annual salary of someone earning minimum wages. In effect, once a person s earnings exceed the SGA level, he or she should be able to live off earnings alone.

2.15     The SSI income and resource requirements should be restructured so that once a person's earnings exceed the SGA level, he or she is able to be financially self-sufficient, which is a concept the SSA should define with input from all affected stakeholders.

Findings

Recommendations

2.16     Congress should provide immediate incentives to people with disabilities that offset work expenses related to disability as these expenses are incurred rather than requiring individuals with disabilities to wait until the end of the year to receive a tax benefit.

2.17     Congress should increase tax benefits through enhanced tax credits, which adequately cover work expenses related to a person's disability.

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Recommendation

2.18     Congress should provide more incentive for businesses to meet the ADA s access requirements by increasing the amount of tax credit available.

CHAPTER 3: JUDICIAL TRENDS IN ADA ENFORCEMENT

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3.1       To accomplish the expressed intent of Congress, the ADA should be amended to provide that the effects of mitigating measures should not be taken into account in determining whether an individual has an impairment under the ADA.

Findings

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 3.2       To avoid continued litigation, Congress should consider harmonizing the ADA and the SSA, or Congress should amend the ADA to provide that the application for, or receipt of, disability-based benefits should have no relevance to an individual's pursuit of his or her rights under the ADA.

3.3       The SSA and other federal and state agencies providing disability-based benefits based upon a certification of disability should make it clear on all forms and applications for benefits that all such certifications are for the sole purpose of determining disability under that agency's applicable laws, do not address the ADA's reasonable accommodation requirement, and are in no way a representation of limitation for the purposes of the ADA.

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3.4       The appropriate federal agencies should adopt policies and programs aimed at helping states and local governments to fully implement the Supreme Court s Olmstead ruling as addressed more specifically in Findings and Recommendations for chapter 5 of this report.

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3.5       The DOJ should develop a contingent plan for active monitoring and enforcement of the provisions prohibiting discrimination by state entities in anticipation of the Supreme Court's decision. The plan should be ready for implementation in the event the Supreme Court, consistent with recent decisions, invalidates ADA provisions allowing individuals to file suit against states in federal court.

Chapter 4: Substance Abuse under the ADA

Findings

Recommendations

 4.1       Information should be made available to employers by the EEOC and the DOJ on the economic benefits derived from establishing EAPs or similar programs.

4.2       Congress should provide appropriate tax incentives for the establishment of EAPs and similar programs within private industry.

4.3       The EEOC should form a task force, which includes stakeholders, to develop a Handbook of Best Practices that would illustrate successful approaches that employers in various industries have taken to comply with ADA provisions pertaining to substance abuse.

Findings

An employer may prohibit the illegal use of drugs and the use of alcohol at the workplace.
It is not a violation of the ADA for an employer to give tests for the illegal use of drugs.
An employer may discharge or deny employment to persons who currently engage in the illegal use of drugs.
Employers may require employees who use drugs or alcohol to meet the same standards of performance and conduct that are set for other employees even when the unsatisfactory performance or behavior is related to drug use or alcoholism.
Employees may be required to follow the Drug-Free Workplace Act of 1988 and rules set by federal agencies pertaining to drug and alcohol use in the workplace.

Recommendation

4.4       The EEOC should encourage employers to develop EAPs that provide incentives to employees to seek treatment for substance abuse problems.

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4.5       The EEOC, after consulting with stakeholders, should offer specific and detailed guidance in defining what is a current drug user.

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4.6       The EEOC, with input from stakeholders, should provide additional guidance on whether employers need to provide leaves of absences for drug or alcohol abuse.

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4.7       The EEOC should continue to aggressively support its current regulations, which require the determination that an individual poses a direct threat to a company or to himself be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job.

4.8       The EEOC should provide additional guidance in categorizing a job as safety sensitive.

Chapter 5: Psychiatric Disabilities and the ADA

Title I: Employment of Individuals with Psychiatric Disabilities

Findings

Recommendations

5.1       The EEOC should be given additional funding to provide technical assistance for employers to comply with the Psychiatric Enforcement Guidance. Education and training for employers should be provided by the EEOC.

5.2       The EEOC needs to develop a process for stakeholders to raise concerns and to participate in policy development before the issuing of policy guidance. The EEOC should consider circulating proposed policies, including publication on the Internet, to invite comments from stakeholders.

Title II: Public Entities 

Psychiatric Disabilities and the Most Integrated Settings Standard in General

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5.3       The DOJ, the SSA, and other federal agencies should promulgate regulations that complement each other and in turn force public entities to establish written Title II policies that have clear, objective, and fair standards by which individuals with mental disabilities may be integrated into community-based settings that are most appropriate for their needs.

5.4       Stakeholders should play a significant role in the development of any and all Title II policies.

5.5       The DOJ, the SSA, and other federal agencies regulations and policies should provide funding incentives for states that improve the integration of individuals with mental disabilities into community settings.

5.6       The DOJ should develop mechanisms for identifying cases for litigation that involve discrimination against individuals with mental disabilities and that are aimed at defining and refining the protections of the ADA in this area.

5.7       The DOJ should perform compliance monitoring to ensure the proper treatment of individuals with mental disabilities in community-based settings and institutions.

Psychiatric Disabilities and the Most Integrated Settings Standard in the Specific: Olmstead

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5.8       State and local agency policies should allow individuals with mental disabilities, or those acting as their representatives, to challenge the findings of state and local administrators with respect to the most integrated setting for a particular individual. These policies should allow meaningful consideration of the mental health care providers opinions as to whether these individuals are best served in a community setting.

Individuals with Mental Disabilities and Law Enforcement

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5.9       Congress should provide additional funding to the DOJ to allow it to increase its technical assistance tools, including offering nationwide training of officers in how to interact with individuals with mental disabilities. This training should include how to recognize symptoms and how to approach and interact with individuals with mental disabilities and should include videos and simulations developed in conjunction with disability advocacy groups.

5.10     Law enforcement departments and local precincts should reach out to local community and advocacy groups and conduct classes with group homes and shelters so that both the police and individuals with mental disabilities are sensitive to each others needs and responsibilities.

5.11     Law enforcement departments should have timely access to mental health experts who are capable of assisting them in ensuring that victims and suspects with mental disabilities are adequately assisted.

5.12     Law enforcement departments should videotape encounters between police and individuals with mental disabilities when these individuals rights are in jeopardy. For example, when individuals with mental disabilities are detained or questioned, the police must ensure that these individuals understand the implications of any consent. 

Title III: Public Accommodations

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Recommendation

5.13     The EEOC and the DOJ should issue subregulatory guidance that provides that differential treatment with regard to insurance benefits for individuals with mental disabilities is discriminatory and prohibited by the ADA. This should apply to life insurance, accident insurance, disability insurance, health insurance, and other types of insurance that are subject to coverage under the ADA.

Finding

Recommendation

5.14     The DOJ should issue subregulatory guidance providing a standard for licensing boards inquiries into mental health backgrounds of applicants. The guidance should make clear that the focus of the inquiry is on problematic behavior in areas of an applicant's life, which are inconsistent with the duties of the licensee.