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The Americans with Disabilities Act (“ADA”) and its Michigan counterpart, the Persons with Disabilities Civil Rights Act (“PWDCRA”) are well-known but often misunderstood laws that can have serious impacts on your township’s operations. From employment law landmines to the confusion surrounding service animals, the ADA is filled with pitfalls that can all too easily result in time-consuming and costly problems for township officials unfamiliar with its many details. This E-Letter explores how the ADA and PWDCRA impact townships and how to avoid costly mistakes.

Disability Protection in Public Employment

Perhaps the most familiar setting for the ADA is in employment. Title I of the ADA applies to all employers, including local governments, who employ fifteen or more employees. For employers with fewer than fifteen employees, the PWDCRA applies to any employer with at least a single employee. The PWDCRA and the ADA overlap in virtually all key areas and are generally interpreted similarly. Therefore, while the PWDCRA certainly applies to the items discussed in this E-Letter, the PWDCRA is generally applied consistent with the ADA or otherwise has similar provisions impacting townships.

The ADA prohibits discrimination of a qualified individual on the basis of disability in “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 USC § 12112(a). In essence, any adverse employment action taken by an employer because of the impacted employee’s disability will place the decision in the crosshairs of the ADA, with some exceptions.

1. Disability

As you might expect, not every physical, mental, or psychological condition is considered a “disability” under the ADA. There is no specific statutory list of conditions that meet the definition of a “disability.” Instead, whether an employee has a disability is determined based on the specific facts of their situation, not just the diagnosis. To be protected by the ADA, a disability must be a “physical or mental impairment that substantially limits one or more major life activities.” 42 USC 12102(1)(A).

The phrase “major life activities” is interpreted broadly to include things like caring for oneself, seeing, hearing, eating, sleeping, walking, standing, bending, lifting, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. It also includes conditions that disrupt major bodily functions, such as the immune system, cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Any condition that meets those broad criteria will be considered a disability, even those that are more difficult to see, such as psychological disorders like depression and post-traumatic stress disorder. Note that ongoing illegal drug use, compulsive disorders such as problem gambling, kleptomania, and pyromania are not considered disabilities. Alcoholism and recovery from drug addiction may be disabilities depending on other factors.

Employees are also considered disabled and given protection under the law if the employer treats them as if they have a disability, even if they do not have one. For instance, if a new hire exhibits seemingly strange and anti-social behavior the employer believes is the result of a psychological disorder and the employer then fires the employee on the basis of a suspected psychological disorder, the ADA may be triggered, even if he or she does not have any actual disability.

Employees also receive protection from actions taken based on their association with individuals who have disabilities. For example, an employee cannot be discriminated against simply because her significant other is known to be HIV-positive. Finally, note that temporary conditions, such as recovery from surgery or illnesses like the flu, are not considered disabilities unless they become chronic conditions that impact major life activities for a significant duration.

2. Who Receives Legal Protection from Disability Discrimination?

While the definition of disability is expansive, not every employee with a disability is entitled to protection under the ADA. In order to be a “qualified individual,” the employee must be able to perform the “essential functions of the employment position” either with or without reasonable accommodations. For example, your township has no obligation to hire an applicant for an open firefighter position if the applicant’s disability prevents him or her from being able to stand, walk, lift, or operate firefighting equipment. Essential functions of a job are those duties that are central to achieving whatever the goal of the position is, and will differ based upon the job. An office worker’s job will not likely include the essential function to lift and carry objects over 50 pounds, even if the office worker has occasionally performed that task. However, someone in a township department of public works might have the essential function of lifting and carrying objects over 50 pounds. Often the essential functions of the job are included as part of well-drafted job descriptions, even though a job description alone cannot trump the actual duties the employee performs. Consult with your township employment attorney before concluding that an employee with a disability is not entitled to any accommodation as that determination is very fact-specific and is fraught with difficulties.

3. The Interactive Process and Reasonable Accommodation

If a request for an accommodation is made, an employer must engage in the “interactive process.” That means that when a township is advised of a possible disability and a request for accommodation, the township must work with the employee to determine whether any reasonable accommodations exist that will allow the employee to continue working in modified circumstances. Consult with the employee to determine what limitations may exist for his or her particular disability and whether and how such limitations can be overcome by reasonable accommodations.

Reasonable accommodations are changes to conditions of employment that allow the employee to perform his or her job with some sort of modification to the typical conditions. Whether an accommodation is reasonable depends entirely on the specific facts of a given case; there are no hard and fast rules for which accommodations are reasonable and which are not. Changes to an employee’s schedule, purchasing modified office equipment, modified job duties (though not the elimination of an essential function), and improved workplace accessibility are just a few of the forms a reasonable accommodation may take.

Employers are not required to make reasonable accommodations that pose an “undue hardship” to their operations. “Undue hardship” means an accommodation that would require “significant difficulty or expense” in terms of actual cost to implement, the employer’s financial resources, the impact of the accommodation on the operation, and the way in which the accommodation would fit with the type of operations being performed at employer’s facility. For example, while it may be a reasonable accommodation to provide an ergonomic chair to an office employee with chronic back pain, it likely is an “undue hardship” for the employer to allow that employee to work from a bed within the employer’s office, where others are working from typical office chairs.

Keep in mind that while an employer must provide a reasonable accommodation to a qualified employee if it does not impose an undue hardship on the employer, employees are not entitled to their preferred accommodation if there are other accommodations proposed by the employer that adequately address the workplace limitation.

An employer’s participation in the interactive process is crucial. Even if the employer thinks it is likely that no reasonable accommodation could possibly help the employee and even if no effective accommodations are likely to be reasonable, the employer still must engage in the process in good faith and make genuine efforts to reach a mutually satisfactory endpoint. Even if the outcome would be the same without the interactive process, the law requires that employers take steps to assess whether reasonable accommodations exist.

4. Medical Privacy

The ADA also imposes certain medical privacy obligations on employers. Employers generally cannot ask questions that might reveal employee disabilities nor require physical examinations of employees unless those inquiries are “job-related and consistent with business necessity.” To use an extreme example, a township can likely ask an applicant for a police department position his or her ability to stand, run, and lift heavy objects and may even subject him or her to physical testing. Those same questions and tests would likely not be job-related for a deputy clerk.

As for requesting medical documentation, the ADA permits it, again where it is job-related and consistent with business necessity. If an employer needs medical information to evaluate whether an employee is disabled, whether an accommodation is owed to the employee, or whether a certain accommodation will be effective, the employer generally may request medical documentation to support the employee’s claims. The employer should receive only as much information as is needed to make those determinations, however. An employee’s failure to provide substantiating documents likely ends your obligation to accommodate (unless the need for an accommodation is obvious). Employee medical information should be kept separate from the employee’s personnel file and must be kept confidential to the extent possible.

5. COVID-19’s Impact on Disability and Accommodation Law

The COVID-19 pandemic is likely to cause some significant shifts in how disability accommodation operates. Of primary importance is the accommodation of working from home. In the past, courts disfavored employees requesting remote work as a reasonable accommodation for disabilities. However, given the widespread remote work that took place (often successfully) during the pandemic, there may be a shift. While the courts have yet to hand down post-COVID-19 remote work cases, there is a clear focus by the Equal Employment Opportunity Commission (“EEOC”) to open up possibilities for remote work as a reasonable accommodation. Importantly, if an employee requesting remote work as an accommodation and any of their colleagues worked from home successfully during the pandemic, it may be difficult for employers to reject remote-work arrangements in the future, especially if there is some factor within the workplace that aggravates the employee’s disability.

Disability Protection in Public Services

1. Public Services and Facilities

Title II of the ADA prohibits all state and local governments from discriminating against individuals with disabilities in providing public services, programs, or activities. 42 USC § 12132. “Public services” that fall under this portion of the ADA encompass essentially any service provided by your township to the public. Law enforcement, emergency services, recreational programs, elections, parking, and the adoption of zoning requirements are just a few of the many activities of local government that must remain free of disability discrimination. This is also the portion of the ADA that imposes building, facility, and other architectural obligations on local governments.

The same definition of disability applies here as in the employment context, and Title II of the ADA only protects those individuals with disabilities who can, with or without reasonable modifications to the services, meet the eligibility criteria to receive such services. In other words, like in the employment setting, a person must be able to enjoy the benefits of the service either with or without accommodation for the law to apply at all. For instance, your township has no duty to accommodate a 16-year-old resident who is unable to access your voting machines due to a disability because that individual is not qualified to participate in the election.

Also, like employment, impacted citizens must suggest reasonable modifications to public services that would allow them to enjoy such services. Local governments must grant reasonable modifications or accommodations that give citizens “meaningful access” to the services. For instance, your township should include on its meeting notices a note about who to contact if residents with disabilities require an accommodation to have access to your meetings. Your township need not grant accommodations that pose an “undue burden.” Generally, an undue burden in this context is excessive financial cost for limited improvement to access. Accommodations may also be denied where they fundamentally alter the service being provided. For example, it may be a reasonable accommodation for a deaf person to receive written instructions from police or a sign-language interpreter onsite, but it would be a fundamental alteration of law enforcement for suspects of crimes who are deaf to be exempt from questioning altogether.

As for accessibility of township facilities, older buildings are generally not required to be substantially renovated if doing so would come at significant costs. Moreover, structural changes are not required if other, simpler, and less costly changes are feasible. Whenever structural changes are required, the ADA has set accessibility standards that should govern whatever modifications your township makes. Newly constructed public facilities must meet the most recent ADA standards at the time they are built.

2. Service Animals and Emotional Support Animals

In the context of public service discrimination, there is considerable confusion about ADA protections for animals who provide some physical or psychological benefit to their owners or handlers. The ADA protects “service animals,” which means “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” 28 CFR § 36.104. In some limited cases, miniature horses have also been determined to be service animals. Service animals must perform a task for an individual with a disability. Such tasks include assisting in navigation for individuals who are blind or have low vision, alerting hard-of-hearing individuals to the presence of sounds or dangers, pulling a wheelchair, assistance during seizures, retrieving items such as medicine or the telephone, or assisting with balance or mobility difficulties.

Critically, the regulations of the ADA are clear that “[t]he crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” Id. In other words, “emotional support animals” are not protected by the ADA and your township has no obligation to accommodate their presence where animals would otherwise not be allowed.

Township employees and officials should tread lightly when approaching someone who may be using a service animal. If the need for the service animal is obvious, the individual should not be asked to substantiate the need for the animal. If the need is not obvious, you may ask whether the animal is required due to a disability and what work or task the animal is trained to complete. The individual should not be asked about the specifics of the individual’s disability, nor should medical documentation be requested. The handler of the animal need not present training documentation and township personnel should not ask to see the animal demonstrate its training.

Note though that the federal Fair Housing Act does provide protection for emotional support animals. An individual with a disability cannot be denied access to housing on the basis of their emotional support animals. That means that zoning or land-use restrictions on keeping animals may require reasonable accommodation if a resident can demonstrate that he or she has a disability and that the animal in question provides some assistance or therapeutic support.

3. Websites

Perhaps surprisingly, the Department of Justice (“DOJ”) has taken actions to enforce the ADA as to websites. In the past, both private businesses and local governments have been subjected to ADA claims on the basis that their websites are inaccessible, especially to those with vision and hearing impairments. For instance, it poses a potential ADA problem if a resident with low vision attempts to access your township’s online code of ordinances or if a resident with a hearing impairment attempts to watch an online recording of a past township board meeting.

At present, it is unclear whether websites are required to be ADA compliant. While the DOJ has long taken the position that the ADA applies to digital spaces, courts are split on whether the ADA applies only to physical space or whether an online space can be sufficiently related to a municipality or business’s physical facilities such that the ADA would apply. The United States Ninth Circuit Court of Appeals held in 2019 that the ADA does apply to websites. However, in April of 2021, the Eleventh Circuit Court of Appeals reached the opposite conclusion in holding that a pharmacy was not required to have an ADA-compliant website. Congress has also begun taking steps to resolve the issue to expressly include websites as part of the ADA’s reach. In the meantime, the rules remain unclear, though the safest approach is certainly to make your website ADA compliant.

Unfortunately, the DOJ has never established clear rules for what constitutes an ADA-compliant website. While certain standards were set to go into effect in 2018, the DOJ withdrew those rules prior to their effective date. Instead, we are left looking only to what the DOJ has included in their settlements with local governments. In two instances, the DOJ has enforced the ADA against Michigan municipalities, in both cases entering into settlements in which the municipality would “[e]stablish, implement, and post online a policy that its web pages will be accessible and create a process for implementation.” The DOJ has also indicated that compliance with the Web Content Accessibility Guidelines (“WCAG”) 2.0 would meet ADA standards despite the fact that WCAG is a private organization and not a governmental entity of any sort. Courts have also used WCAG standards for ADA accessibility. If you are interested in making your website ADA-accessible, contact your township attorney or raise the issue with whoever designs your township’s website.

Conclusion

The ADA and PWDCRA are some of the more complicated, yet important, statutes for you and your township to understand. Whether it is interactions with your employees, allowing the public meaningful access to your township hall, or ensuring that residents can interact with your website, these laws impose serious obligations that are easy to run afoul of if you are not careful. Be sure to contact your township attorney whenever you run into situations where you are unsure of your legal obligations. Careful adherence to the ADA and PWDCRA from the outset is the best way to avoid costly and time-consuming responsibilities down the road.

– Chad Karsten

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.

Upcoming Webinars

ADA in the Township Hall | Tuesday, July 20, 12 – 1 p.m.

Of the many legal landmines that townships face, few are more daunting than the Americans with Disabilities Act (“ADA”). While at first overwhelming, understanding the basic concepts at play in the ADA can go a long way toward ensuring that your township is ADA compliant. The ADA has two primary purposes: prohibiting discrimination against employees on the basis of disability; and ensuring that individuals of all ability levels have access to public facilities, programs, and services. Township compliance with the ADA is essential to avoiding lawsuits, legal fees, and fines and, perhaps more importantly, to fostering good relations with employees and residents of all abilities. The ADA presents numerous stumbling blocks even to the most well-intentioned township officials. This presentation will be your launchpad for understanding when an obligation under the ADA is triggered, how to engage with your employees and constituents when ADA problems arise, how to come to a resolution that balances the need for accommodation with a township’s budgetary and operational concerns, and the impact that COVID-19 has had on the ADA and possible accommodations. Avoid the ADA’s many pitfalls and join us as we discuss the ins and outs of engaging in the interactive process, making reasonable accommodations, and ensuring that your Township treats its employees and constituents with the dignity and respect required under the ADA.

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