The Americans with Disabilities Act Task Force (the "Task Force") was convened and charged with examining the Americans with Disabilities Act of 1990 (the "ADA") and determinig its impact on the University. The Task Force has determined, to the best of its abilities, whether the University is in compliance with applicable ADA requirements. In doing so, the Task Force also looked to Section 504 of the Rehabilitation Act of 1973 ("Section 504") and the Michigan Handicappers' Civil Rights Act (the "MHCRA"). The Task Force has recommended actions which are necessary and prudent in light of the ADA.
The Task Force was co-chaired by Robert F. Banks, Assistant Provost and Assistant Vice President for Academic Human Resources, and C. Keith Groty, Assistant Vice President for Human Resources. Pamela Heatlie, Staff Attorney, Office of the General Counsel and Vice President for legal Affairs, provided legal counsel to the Task Force. In addition to Drs. Banks and Groty, the following individuals served as Task Force members:
Ralph W. Bonner, Director, Department of Human Relations
James Bristor, Professor, Park and Recreation Resources and Chairperson, Presdient's Handicapper Advisory Committee
Ronald T. Flinn, Assistant Vice President for Physical Plant
Eric A. Gentile, Handicapper and Veteran Affairs Coordinator
Judy K. Gentile, Director, Office of Programs for Handicapper Students
Martha L Hesse, Assistant Director, Office of Planning and Budgets, Interim
Manager, Facilities Planning and Space Management; and Member, President's Handicapper Advisory Committee
William C. Hinds, Professor, Physical Medicine and Rehabilitation
Ruth E. Renaud, Assistant Vice President for Student Affairs
Robert C. Underwood, Assistant Vice President for Housing and Food Services
The Task Force divided into three sub-committees which reported to the Task Force on the employment, facilities, and transportation, requirements, of the ADA. The reports of these sub-committees became the foundation for this report.
The Employment sub-committee was chaired by C. Keith Groty and included the following members:
James T. Artabasy, Manager, College of Agriculture and Natural Resources, Personnel Services
Robert F. Banks, Assistant Provost and Assistant Vice President for Academic Human Resources
Ralph W. Bonner, Director, Human Relations
Karna Brandt, Human Resources Professional
Thomas Dutch, Personnel Administrator, Housing and Food Services
Dan Ferguson, Associate Professor, Park and Recreation Resources
Eric A. Gentile, Handicapper and Veteran Affairs Coordinator
Judy K. Gentile, Director, Office of Programs for Handicapper Students
Stanley Hecker, Personnel and Training Adminsitrator, Physical Plant
Edita Herbstova, Human Resources Professional, Employee Relations
Rebecca Berry Jost, Human Resources Supervisor
Jacoba Langerak, Assistant Director of Human Resources, Classification/Compensation Division
Charles Rettke, Operations Manager, Administrative Services, Libraries
Chester Ryeguld, Professor, Computer Science
Vernicka Tyson, Acting Director, Career Development and Placement Services and Member, President's Handicapper Advisory Committe
Donna Zischke, Management Analyst, Office of the Assistant Provost and Assistant Vice President for Academic Human Resources
The Facilities sub-committee was co-chaired by Martha L. Hesse and Robert C. Underwood and inlcuded the following members:
Don Anderson, Specialist, Michigan Consortium for Enabling Technology and Member, President's Handicapper Advisory Committee
James Andrews, Construction and Maintenance Coordinator
James Bristor, Professor, Park and Recreation Resources and Chairperson, President's Handicapper Advisory Committee
Eric A. Gentile, Handicapper and Veteran Affairs Coordinator
Jeff Kacos, Assistant Director, Campus Park and Planning
Barbara Kranz, Facilities Alterations and Improvements Coordinator
Sam Larson, Graduate Assistant, Office of Planning and Budgets
Robert Manthy, Professor, Foresty and Member, President's Handicapper Advisory Committee
Dennis Martell, Parliamentarian, Council of Graduate Students and Member, President's Handicapper Advisory Committee
Robert Nestle, University Engineer
Margaret Nielsen, Assistant Professor, Social Work
Rick Paulsen, Associate PRofessor, Park and Recreation Resources
Ruth E. Renaud, Assistant Vice President for Student Affairs
Terri Reynolds, Undergraduate Student and Member, President's Handicapper Advising Committee
Norman W. Schleif, University Architect
The transportations sub-committee was chaired by Ronald T. Flinn and included the following members:
Ferman Badgley, Deputy Directory, Public Safety, Parking & Special Events Division
Gene Garrison, Service Manager, Automotive Service Pool
Eric A. Gentile, Handicapper and Veteran Affairs Coordinator
Judy K. Gentile, Director, Office of Programs for Handicapper Students
Thomas Kehler, Director, Campus Park & Planning
This report is divided into four sections: Employment, Services and Facilities, Transportation and Miscellaneous. The Employment section generally corresponds to the requirements of Title I of the ADA and Equal Employment Opportunity Commission's (the "EEOC") implementing regulations. The Services and Facilities section generally corresponds to the requirements of Title II-A of the ADA and the Department of Justice's implementing regulations. The Transportation section generally corresponds to Title Ii-B of the ADA and the Department of Transportation's implementing regulations. The Miscellaneous Section is comprised of an administrative recommendation not required by the ADA, and definitions of key terms used in this report.
Title I of the ADA generally requires the University to make all aspects of employment handicapper accessible, including offering "reasonable accommodations" to its employees. The Task Force focused on University policies and procedures concerning faculty and academic staff ("faculty"), support staff ("staff") and student employees to ensure compliance with applicable ADA requirements and reports the following:
A. Informing employees about the ADA
The ADA requires the University to post notices describing the Act's provisions. 42 U.S.C. 12115. These or similar notices must be posted in accordance with section 711 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-10, and must also be made available in accessible formats. ACTION: the University has received posters from the Equal Employment Opportunity Commission ("the EEOC") containing such information and one copy has been sent to Academic Human resources, Human Resources and the Student Employment Office. These offices should post these or similar notices in highly visible places and ensure they are available in accessible formats, such as Braille and audio cassette. Additional copies of these posters may be obtained from the Office and Resource Center on Handicapper and Veteran Affairs.
B. Informing employees about the right to a reasonable accommodation.
All employees have the right to a "reasonable accommodation." See Item V.B.3, below. TheMHCRA requires the University to inform employees that they must request accommodation in writing within 182 days of the date they discovered or should have discovered they need an accommodation. MCL 37.1210(19). The spirit of the ADA also demands that employees be informed of the right to a reasonable accommodation and, although the ADA does not require employees to request accommodation within a specific time-frame, complaints alleging discrimination must be filed within 180 days from the date the discrimination occurred.
Staff. Staff have been informed of the right to an accommodation, the MHCRA's 182 day time limit through articles published in the Fall 1990, Spring 1991 and October 1991 Source. A similar article will be published in Spring 1992 and new staff will begin receiving Accommodation Request Forms as apart of employment processing. In addition, each year new staff are surveyed and given the opportunity to request an accommodation if they have not done so already. Every three years, all staff are surveyed and asked to review and update their handicapper and veteran status, including requests for accommodation. ACTION: Human Resources should take the following or similar action: Continue with these efforts and ensure that job applicants also are informed of the right to reasonable accommodation
Faculty. Most faculty have been informed of the right to an accommodation through the articles published in Source. In addition, each year new faculty are surveyed and given the opportunity to request accommodation if they have not already done so. Every three years, all faculty are surveyed and asked to review and update their handicapper and veteran status, including requests for accommodation. Prospective faculty and prospective and current graduate assistants generally are not informed of their right to request accommodation. Academic Human Resources will amend the Faculty Handbook to include a section stating that reasonable accommodation is available and describing the process for self-identifying as a handicapper. See Item II.K, below. ACTION: The following or similar actions should be taken by Academic Human Resources and/or the Graduate School:
a. Faculty/academic staff job postings should include statements informing applicants that handicappers have a right to request accommodation, and/or letters of offer should inform offerees of their right to request an accommodation. Where a faculty/academic staff position is not posted (e.g., a waiver of the hiring procedures is used), the letter of offer should inform the offeree of the right to request accommodation. In addition, the temporary appointment/reappointment memorandum should be revised to inform employees of the right to request accommodation, the MHCRA's 182 day time limit and the ADA's 180 day time limit.
b. For graduate assistants, the letter of offer should provide information regarding the right to request accommodation. Prospective graduate assistants should be so informed by the following or similar action:
i. The "Graduate Study" brochure is distributed by the Admissions Office to all prospective graduate students and is likely to be revised and reprinted in Fall 1992. The graduate assistantship section should include information on the right to request accommodation, the MHRCA's 182 day time limit and the ADA's 180 day time limit; or
ii. Develop a general brochure on graduate assistantships containing this information. This is not likely to occur until the Graduate School reorganization is completed.
Student Employees. The University does not have a consistent mechanism for notifying all student employees of the right to request accommodation. Self-identified handicapper students are informed of their right to request an accommodation by the Office of Programs for Handicapper Students. ACTION: The following or similar actions should be taken by the Student Employment Office:
a. The Student Employment Manual, unit-level student employment handbooks, student employee brochures, UUD handbook, and/or Spartan Life should be revised to inform student employees of the right to request accommodation, the MHCRA's 182 day time limit and the ADA's 180 day time limit. The Student Employment Office also should post similar information; and/or b. The "Handicapper Student Information Request" provided to all students upon admission should be expanded to inform students that should they choose to become student employees, they have a right to request accommodation. The document should also set forth the MHCRA's 182 day time limit and the ADA's 180 day time limit.
C. Identifying essential job functions.
The ADA requires the University to employ individuals who can perform essential job functions (with or without an accommodation); the University is not required to employ individual who cannot perform those functions. The ADA provides that, "if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. 12111(8). To help determine which job functions are essential, the University should develop such job descriptions for use before application processes begin. It is crucial that essential job functions be identified on the posting as part of the employment process for each position, as well as in the internal job description, rather than in the classification specification.
Staff. Human Resources is modifying its current Requisition Form so that essential job functions may be more fully explained. The 1992 update of the policy and procedure for filling out requisitions will speak to the importance of "essential duties." Thus, future job postings will list all essential job functions. ACTION: In addition to these steps, it is recommended that the following or similar actions be taken by Human Resources:
1. When possible, a copy of the job posting or other document available to applicants describing the essential functions of the job should be maintained where it may be easily accessed.
2. The University has nearly 800 Classification Specifications for support employees. Some are for single incumbents, but the majority are broad-banded and generic enough to include up to 500 incumbents. Thus it is critical that the essential functions are identified for each incumbent in the requisition submitted for each vacancy, rather than the classification specification which cannot reflect the essential functions for every incumbent in a classification. In the event that the essential functions vary substantially from the text of the classification specification, the Employment Divisions will inform the Classification Division so that the classification specification may be updated.
Faculty. Academic Human Resources plans to write essential job functions into job positing, where applicable, and list them in letters of offer or temporary appointment/reappointment memoranda. The Libraries plan to review job descriptions annually and update individual job descriptions when posted. The Cooperative Extension Service prepares a job description listing essential functions for each position when it is posted, and plans to update job descriptions when necessary. ACTION: Academic Human Resources should take the following or similar action: When possible, a copy of the job posting or other document provided to applicants describing the essential functions of the job should be maintained in the central personnel file of the individual hired or other area where it may be easily accessed. Job postings for temporary employees will be maintained in unit personnel files.
Student employees. Many of the ninety-nine (99) job classifications in the Student
Employment classification system include "essential job functions." The Student Employment Office plans to review job descriptions and make appropriate changes when the Student Employment Manual is revised for distribution in July 1992. Due to the manner in which student personnel records are maintained, it would be impractical to maintain individual job descriptions. ACTION: The Student Employment Office should take the following or similar action: Update job classifications on a regular basis.
The ADA requires that employment test be job-related, consistent with business necessity and administered to job applicants in nondiscriminatory manner. 42 U.S.C. 12112(6) and (7); 29 C.F.R. 1630.10 and 1630.11. The tests must be implemented in a manner that measures the ability to perform a task rather than the ability to respond to the test or perform a task in a particular manner.
Staff. Staff Human Resources administers typing and shorthand tests when job-related and a business necessity. Applicant requests for accommodation are met when possible. Generally, accommodation relates to use of equipment, but other accommodations, such as use of a sign language interpreter, are sometimes need. ACTION: No additional action is needed.
Faculty. No tests are given to faculty. ACTION: No action is needed.
Student employees. Tests are not used in major hiring units, but might be used in smaller units. ACTION: The Student Employment Office should determine whether smaller units are testing prospective student employees. After this determination is made, appropriate action should be taken to ensure that testing, if any, complies with the ADA and other federal and state laws.
The ADA requires employers to make the job application process accessible to handicappers, which includes making interviews available in accessible facilities and communication formats. In addition, employers are prohibited form asking applicants about disabilities, although they may ask a candidate about his/her ability to perform essential job functions. 42 U.S.C. 12112(c)(2)(A). In accessibility of the work site is not an acceptable reason for denying an interview.
Staff. Job applications contain no prohibited questions and are provided in accessible formats upon request. During interviews, Human Resources' employment representatives do not ask about disabilities. Questions related to physical or mental ability are asked only if the ability is required to perform essential job functions. ACTION: Departments usually conduct interviews in their own buildings. If the department's building is not accessible and an accessible building is needed for an interview, Human Resources or the Office and Resource Center on Handicapper and Veteran Affairs will provide information regarding accessible areas in which to hold the interview. To ensure that units are educated about appropriate and inappropriate interview questions, Human Resources will provide them with a Pre- Employment Inquiry Guide. These issues should also be included in training sessions. See Item II.N, P.21.
Faculty. Academic Human Resources is developing written materials to be distributed to all academic unit administrators to educate them regarding the application process, accessible communication formats and accessible interview facilities. The current search handbook contains the Pre-Employment Inquiry Guide. The Cooperative Extension Service uses job application forms; these forms will be reviewed by Academic Human Resources. ACTION: No further action is needed, although these issues should be included in training sessions. See Item II.N, p.21.
Student Employees. The Student Employment Office uses an application form which contains no inappropriate questions; however, individual departments may have their own application forms and processes. ACTION: The following or similar actions should be taken by the Student Employment Office:
The University may require new employees to take medical exams after thy have been extended a job offer. 42 U.S.C. 12112 (c)(3). The medical record must remain separate from the personnel record, but supervisors may be informed of necessary work restrictions. 42 U.S.C. 12112(c)(3). See EEOC Technical Assistance Manual 6.5 VI-11.
Staff. New staff are required to have a health assessment only after a job offer has been made. Statements to this effect appear on application forms and other forms used in processing new employees. After the health assessment, a Health History form is placed in the personnel file. ACTION: Human Resources should take the following or similar action: All personnel records should be expunged of medical information. An employee's written request for accommodation and documentation related to the accommodation (other than medical records) may be kept in the personnel record.
Faculty. New Faculty are referred for a health assessment only after a job offer has been made. This statement is made in the letter of offer. After the health assessment, a Health story form (see footnote 2) is placed in the personnel file. This form is being revised and renamed by the Olin Health Center/Occupational Health Division. ACTION: Academic Human Resources should take the following or similar action: All personnel records should be expunged of medical information. An employee's written request for accommodation and documentation related to the accommodation (other than medical records) may be kept in the personnel record.
Student employees. Olin Health Center/Occupational Health Division will be identifying student employees (those covered by the federal and state Occupational Safety and Health Acts) who will be required to have a health assessment. ACTION: The Student Employment Office would take the following or similar actions: A procedure should be developed to ensure that health assessments are not performed until after a job offer has been made and that all medical information garnered during the health assessment remains confidential and is maintained outside of the personnel record. All personnel records should be expunged of medical information. An employee's written request for accommodation and documentation related to the accommodation (other than medical records) may be kept in the personnel record.
One example of a reasonable accommodation under the ADA is to reassign an employee to a vacant position. 42 U.S.C. 12111(9)(B). This legal obligation could be difficult to fulfill if the vacant position were governed by a collective bargaining agreement ("CBA") with strict provisions regarding seniority and filling of vacant positions, since the University would have concomitant legal obligations under the ADA and the CBA. It is not a defense to refuse to accommodate an employee with a reassignment because a CBA or other contractual arrangement forbids it.
Staff. All CBAs contain language regarding nondiscrimination toward handicappers and Human Resources will review the CBAs for greater consistency and specificity. The University's CBAs do allow each party to request a waiver of contractual provisions to address specific needs; however, in order to ensure the University's long term compliance with both the ADA and its CBAs, CBAs should contain language permitting the University to fulfill its obligations under the ADA, even if that obligation conflicts with the terms of the CBA. ACTION: Human Resources should undertake the following or similar action: All CBAs should include statements permitting the University to fulfill its legal obligations under the ADA even when that reassignment conflicts with CBA provisions, including those relating to seniority and filling of vacancies.
Faculty and student employees. Not applicable.
Staff, faculty and student employees. Decisions regarding workers compensation accommodations should be made as they would for new or current employees requesting accommodations, provided the injury in question is a "disability" as defined by the ADA. See Item V.B.1, p.34. ACTION: To ensure consistency in accommodations, individuals responsible for making decisions about workers' compensations should work closely with those responsible for making decisions about reasonable accommodations. See Item II.J, p. 19.
Staff, faculty and student employees.
Some employees' jobs require them to travel. The University currently does not provide employees with transportation for on-campus travel. If such travel is an intrinsic element of an essential job function (the employee could not accomplish the task using a telephone, computer, fax machine, etc.), the issue should be considered in light of the reasonable accommodation requirement. In instances in which University policy or practice provides employees with transportation either for on- or off- campus travel, that transportation must be made available to handicapper employees. ACTION: Decisions concerning reasonable accommodations are fact intensive and must be made on a case-by-case basis. See Item II.J, p.10. Where the University's policies or procedures provide employees with transportation, such transportation must be made accessible. (See also Item IV.A, p.31.)
The University is required to provide handicapper employees with reasonable accommodations unless doing so would create a undue hardship. 42 U.S.C. 12112(b)(5)(A) and 12111(9). See Items V.B.3 and 6, pp. 38 and 41. ACTION: The Task Force recommends that a work group be convened by the Assistant Vice President for Human Resources and the Assistant Provost and Assistant Vice President for Human Resources and the Assistant Provost and Assistant Vice President for academic Human Resources to develop a proposal for ensuring consistency in making determinations about reasonable accommodations for University employees. The proposal developed by the work group should address a charge, organization/membership and participation in the process. Unit responsibility for funding accommodations will be continued, with assistance from the Dean/MAU office and/or relevant Vice President as necessary.
Staff, faculty and student employees. The Employee Handbook, Faculty Handbook and Student Employment Manual have been reviewed for discriminatory language. No discriminatory language was found and each handbook contains statements on nondiscrimination. The Faculty Handbook will be amended to include a section describing the process for self-identifying as a handicapper and stating that reasonable accommodations are available. ACTION: Human Resources and the Student Employment office should take the following or similar action: The Employee Handbook and Student Employment Manual should be amended to describe the process for self-identifying as a handicapper and state that reasonable accommodations are available. See Item II.B, p.6.
Staff, faculty and student employees. The ADA forbids the University from entering into a contract or business arrangement (from CBAs to benefits) with other entities if such an agreement would have effect of subjecting University job applicants or employees to handicapper discrimination. 42 U.S.C. 12112(B)(2); 29 C.F.R. 1630.6 ACTION: The University should review current and future contracts and business arrangements (both on-and off-campus) to ensure that these arrangements do not discriminate against handicapper applicants and employees. In addition, administrators and supervisors should receive training to enable them to recognize potential problems. See Item II.N, p.21. These contracts also should be reviewed to ensure that these arrangements enable the University to provide accessible programs, services and activities. See Section III, generally, p.22.
Staff and faculty. Benefits available to staff and faculty are determined solely by job classification. ACTION: Human Resources and Academic Human Resources should ensure that changes in benefits continue to be accomplished in a way that does not have a discriminatory impact on handicapper employees.
Student Employees. Not applicable.
Administrators, supervisors and all persons responsible for hiring staff, faculty and student employees must receive appropriate training and information about the ADA. These individuals should receive training regarding each of the above issues and the basic concepts raised by the ADA, such as the definition of "handicapper" and "reasonable accommodation." These individuals must know the basic tenets of the law and what resources are available to help them abide by those tenets. ACTION: The University should require mandatory ADA training for administrators, supervisors, persons responsible for hiring employees and all other appropriate individuals, with the understanding that on-going training will be necessary for new employees who serve these functions. Academic Human Resources, Human Resources and the Student Employment Office should take the lead in developing an appropriate program incorporating all University resources. See Section III, Item K, p.30.
Title II-A of the ADA requires the University to make all of its services, programs and activities accessible unless doing so would fundamentally alter the nature of a service, program or activity, or create undue financial and administrative burdens. 28 CFR 35.150 (a)(3). The Task Force reports the following:
A. Self-evaluation.
The University must perform a "self-evaluation" of its current services, policies and practices, and the effects thereof, by January 26, 1993. 28 CFR 35.105. Any University program, service or activity which, when viewed in its entirety, does not meet the requirements of the ADA must be modified or eliminated. Since the university performed a "self-evaluation" in accordance with Section 504 (in the 1970s), it is not required to re-evaluate all of its activates, but it must evaluate any activities which were not evaluated under Section 504 or which were evaluated but have changed substantially since that time. This self-evaluation must include activities conducted off-campus, regardless of whether the University owns the site on which the activity is conducted. See Item III.H, p.28. The self-evaluation must include a list of all interested persons consulted, a description of areas examined and problems identified, and a description of any modifications made or needed. ACTION: The Provost, Vice President for Finance and Operations and the Vice President for Student Affairs should take the following or similar action: determine and implement a method for performing the self-evaluation. Either the University should re-evaluate all University activities or evaluate activities which have not been self-evaluated under Section 504 or which have changed substantially. Whichever method is chosen, each unit should formally designate employee time and effort to be used in achieving compliance, rather than having employees add ADA compliance efforts to a list containing competing tasks. Individuals who will be evaluating University activities would receive mandatory training to assist them in recognizing actual and potential areas of noncompliance. See Item III.K, p.30. The self-evaluation should be retained for a minimum of three years. Each unit also should re-evaluate its compliance regularly, reporting on its status in the Academic Program Planning and Review or Support Services Program Planning and Review process.
B. Transition plan.
If structural changes necessary to make programs accessible, the university must develop a transition plan setting forth the steps to be taken to complete the changes. 28 CFR 35.150(d). The transition plan must contain a list of physical barriers limiting accessibility to activates; a detailed outline of the methods to be used to remove the barriers; a schedule for achieving compliance, including steps to be taken each year if more than one year is required; and the name of the University official responsible for transition plan implementation. Department of Justice ["DOJ"] Technical Assistance Manual, II-8.3000. The transition plan also must include a schedule for providing curb ramps where pedestrian walkways cross curbs. DOJ Technical Assistance Manual, II-5.4000. The ADA requires the University to develop a transition plan by July 26, 1992. Interested individuals, including handicappers and handicapper organizations, may participate in the development of the transition plan by submitting written comments. Alterations necessary to make programs accessible should be completed by January 26, 1995. 28 CFR 35.150(c) ACTION: The University already has a transition plan developed for use in complying with Section 504 (the Manager of Facilities Planning and Space Management is responsible for coordinating its implementation actions) and may develop a new transition plan or update the transition plan already in use, if necessary. The updated or new transition plan should include all alterations necessary to make activities accessible both on and off campus.
C. Notification.
The University must inform applicants, participant, beneficiaries and other interested individuals of the provisions of the ADA and their applicability to the University's programs, services and activities. The President should determine when and how to apprise individuals of the prohibitions of Title II of the ADA. 28 CFR 35.106. ACTION: The President or her/his designee should determine which method the University will use to publicize the prohibitions of Title II. The Department of Justice has bade the following statement regarding notification:
Methods include the publication of information handbooks, manuals, and pamphlets that are distributed to the public describe a public entity's programs and activities; the display of informative posters in service centers and other public places; or the broadcast of information on television or radio. In providing the notice, a public entity must comply with the title II requirements for effective communication, including alternative formats, as appropriate. DOJ Technical Assistance Manual, II-8.4000.
The Department of Justice will not be developing posters to be used for this purpose.
D. Designation of responsible employee.
The University must designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title II-A of the ADA including investigation of complaints of noncompliance or prohibited activities. The identity(s) and location(s) of this individual must be made available to all interested individuals. 28 CFR 35.107. ACTION: The University has designated the Director of Human Resources as the individual responsible for coordinating University Compliance efforts regarding anti-discrimination laws. The Task Force recommends that the Director of Human Resources continue in this function as regards Title II-A of the ADA. See Item V.A., p.33.
E. Grievance procedure.
The University is required to adopt and publish grievance procedures providing for resolution of complaints of Title II-A violations. 28 CFR 35.107. The Anti-Discrimination Judicial Board and the grievance procedures adopted in the collective bargaining agreements governing University employees provide the University community appropriate forums for filing and resolving such complaints. These dispute resolution mechanisms are well published. ACTION: No further action is needed.
F. Building accessibility.
Each University activity, when viewed in its entirety, must be available in accessible facilities. Any accessibility decisions must be made so as to provide the service or program in the most integrated setting possible.
1. Nonstructural changes.
The ADA provides that services, programs and activities which take place exclusively in nonaccessible facilities may be made accessible by relocating them to accessible facilities.
2. Structural changes.
Title II-A focuses on accessibility of programs and services. Physical changes to a building are required only when there is no other feasible way to make the program accessible; however, the ADA does not require the University to take actions which would lessen the historic significance of historic properties (although such properties must be made as accessible as possible through alternative means), fundamentally alter the program, service or activity, or cause undue financial and administrative burdens.
ACTION: The University currently relocates the programs and services to accessible facilities to avoid providing inaccessible activities (e.g., providing job interviews in and relocating classes to accessible buildings). Only activities which are located in inaccessible facilities and cannot be made accessible by relocation to accessible facilities require the University to make physical and structural changes to facilities, with few limited exceptions. The University should continue with its transition plan (as it may be modified by the actions taken pursuant to Items III.A and III.b, p.22) with priority being given to those changes which make currently inaccessible programs, services or activities accessible.
G. New construction and building alterations.
Facilities designed, constructed or altered by or on behalf of the University must be accessible and useable by handicappers if the construction or alteration begins after January 26, 1992. 28 CFR 35.151. Some facilities, such as historic properties, are exempt from this requirement. In constructing or altering a non-exempt facility, the ADA permits the University to follow either the Uniform Federal Accessibility Standards (the "UFAS") promulgated pursuant to Section 504 or the Americans with Disabilities Act Accessibility Guidelines for Buildings and facilities (the "ADAAG"). ACTION: In future construction or alterations, the University must determine whether it wishes to follow UFAS or ADAAG guidelines for a particular facility. Once the University begins using one set of guidelines on a facility, those guidelines must continue to be used throughout that facility rather than using the UFAS for one project and the ADAAG for another. DOJ Technical Assistance Manual, II-6.2100. The University also should ensure that it is following the State of Michigan's Barrier Free Design Rules. The University also has its own guidelines for construction.
H. Leased space.
The University is not required to lease accessible space, but any services, programs or activities provided in leased space which is inaccessible must be made accessible. ACTION: Services and programs offered in leased facilities should be reviewed for accessibility. This may be accomplished through the self-evaluation explained in Item III.A, p.22. See also Item II.L, p.20. All new leases should be reviewed before being executed.
I. Communications.
The University must ensure that it communicates effectively with handicapper applicants, participants and member os the public; this generally entails use of auxiliary aids an services. Assisted communication must be as effective as non-assisted communication. 28 CFR 35.160. Some examples of auxiliary aids and services are: TDDs, exchanging written notes, qualified interpreters, assistive listening systems, closed caption decoders, videotext displays, qualified readers, taped texts, audio recordings, Braille materials, large print materials, oral directions, computer terminals, speech synthesizers, descriptive ideas and communication boards. See Item V.B.5, p.40. Primary consideration should be given to each handicapper's requested auxiliary aid or service. ACTION: The University must ensure that it communicates in an accessible manner with handicappers. The Task Force recommends that the University disseminate materials to and initiate mandatory training for individuals responsible for providing programs, services and activities so that they may understand requirements regarding communication and understand which resources are available to aid such communication (e.g., Michigan Relay Service, Attachment 1). See Item III. K, p. 30.
J. Emergency telephone services.
The University's emergency telephone services must provide direct access to individuals who use TDDs or computer modems (using the Baudot format) to communicate. 28 CFR 35.162. See also, DOJ Technical Assistance Manual, II-7.3000. TDD and computer modem users cannot be required to undertake additional dialing or space bars. In the alternative, the University can create a relay service within its emergency service, provided that such services are as effective as that provided for voice calls. The University is not required to provide voice amplification of the operator's voice, although the Department of Justice encourages use of such equipment to aid hearing and impaired callers. See DOJ Technical Assistance Manual, II-7.3400. ACTION: The University should ensure that its emergency telephone services are directly accessible by TDD and computer modem users and that individuals receiving such calls are trained to respond appropriately. See Item III.K,p. 30.
K. Training.
Persons responsible for providing University programs, services and activities should receive mandatory training to enable them to identify and solve actual and potential accessibility problems. ACTION: The Task Force recommends that this training be provided in conjunction with the employment training recommended in Section II, Item N, p. 21, with the understanding that an on-going training of new supervisors will be necessary.
L. Information and signage.
Inaccessible entrances to each University facility should have signage directing users either to an accessible entrance or to a location where they can obtain information about accessible facilities. In addition, accessible entrances must be marked with the international symbol for accessibility. All interested individuals, including individuals with impaired vision and hearing, must be able to obtain information about the existence and location of accessible activities and facilities. 38 CFR 35.163. ACTION: The University should label each entrance in the manner suggested above. The Task Force recommends that this matter be referred to the Executive Committee on Buildings, Facilities and Space for further discussion regarding financial resources available to undertake this endeavor as well as the logistical and administrative problems it entails.
A. Shuttle buses.
The ADA does not require the University to provide paratransit services to complement its shuttle bus services, 49 CFR 37.25 (b) and 37.121(c); however, the University does provide demand responsive paratransit services to handicapper students through the Office of Programs for Handicapper Students under its Section 504 obligations. New or used shuttle buses purchased or leased by the University in the future must be accessible. The University may purchase nonaccessible, used buses if, after exerting good faith efforts, it is unable to purchase an accessible, used bus. 49 CFR 37.73 (b) and (c). If the University remanufactures any of its shuttle buses to extend their useful lives by more than five years, they must be made accessible as required by the Department of Transportation regulations, if possible. 49 CFR 37.75. ACTION: This issue requires further legal and administrative review, which the Office of the General Counsel, The Provost and the Vice President for MSUFGP Finance and Operations will undertake. The Task Force will consider the matter further, if necessary. See Section IV, Item D, p.33.
B. Charter buses.
When the University charters its buses on a regular and continuing basis, it may be considered to be providing a demand responsive transportation system. 49 CFR37.3. As with any service offered by the University, charter buses must be available to and accessible by handicappers either through alteration or provision of complementary, accessible transportation. New or used charter buses purchased or leased by the University in the future must be accessible, unless the University's charter bus system, when viewed in its entirety, is already providing an equivalent level of service to handicappers. In this event, the University must make and retain a "certificate of equivalent service," unless it is receiving Urban Mass Transit Authority (the "UMTA") funds, which would require filing such a certificate with the UMTA. ACTION: The University should ensure that its charter buses are accessible as needed.
C. Olin Health Van, Dial-A-Ride and Nite Rider.
These demand responsive services must be handicapper accessible to the same extent as charter buses. See Item IV.B, p. 31. ACTION: The University has ordered an accessible Dial-A-Ride/Nite Rider bus. If the Olin Health Center courtesy van is used or continues to be used to transport students, it must be made accessible or equivalent transportation provided. See Section IV, Item D, p. 33.
D. Administration of Transportation Services.
The University has policies in place which restrict University resources and will inhibit the University's compliance efforts. These policies and practices should be reviewed and updated to incorporate changes made necessary by the ADA. The University also should examine the possibility of combining administrative responsibility for all motor vehicles under one office so that accessible vehicles may be used in the most cost-effective manner possible. ACTION: The Task Force recommends the following or similar action: The Provost and Vice President for Finance and Operations should review current University policies and practices and make administrative changes needed to ease University compliance with ADA, Section 504 MHCRA requirements.
A. Administrative structure.
It is important that the University create a non-duplicative administrative structure capable of making quick, thoughtful and effective decisions regarding the ADA. In assigning responsibilities for ensuring compliance with the ADA, making reasonable accommodations decisions, etc., the University should analyze the administrative structure it currently has in place for ensuring compliance with section 504 and its Affirmative Action Plan. See attachment 2. See also Items II.J, p.29; III.D, p.25; and III.E, p.26. ACTION: The Task Force recommends that the President take the following or similar action: Charge the Provost, the Vice President for finance and the Vice President for Student Affairs with appointing a committee to review this matter.
B. Definitions.
The following definitions (with slight editorial changes are taken from the ADA and its implementing regulations. Section 504 and the MHCRA contain their own definitions.
1. Handicap. The term "handicap," as used in this report, is referred to as "disability" in the ADA. As set forth in the ADA, "[t]he term 'disability' means, with respect to an individual-- a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." 42 U.S.C. 12102 (2).
The implementing regulations of the EEOC and Department of Justice have defined the key terms in the definition of handicap/disability, as follows:
a. "Physical or mental impairment" is defined by the Department of Justice as, "Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin and endocrine; Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. The phrase physical or mental impairment does not include homosexuality or bisexuality." 28 CFR 35.104. See also 29CFR 1630.2(h).
b. "Substantially limits" is defined by the EEOC as, "[unable to perform a major life activity that the average person in the general population can perform or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. The following factors should be considered in determining whether an individual is substantially limited in a major life activity: the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or the expected permanent of long term impact of or resulting from the impairment. With respect to the major life activity or working--the term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. The following factors also may be considered in determining whether an individual is substantially limited in the major life activity of 'working': the geographical area to which the individual has reasonable access; the job from which the individual has been disqualified because of an impairment and the number and types of jobs utilizing similar training, knowledge, skills or abilities within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or the job from which the individual has been disqualified because of an impairment and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes)." 29 CFR 1630.2(j).
c. "Major life activity" is defined by the EEOC and the Department of Justice as, "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 CFR 35.104.
d. "Has a record of such an impairment" is defined by the EEOC and Department of Justice as, "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more life activities." 29 CFR1630.2(k); 28 CFR 35.104.
e. "Is regarded as having such an impairment" is defined by the EEOC and the Department of Justice as, "(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; (2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others towards such an impairment; or (3) Has none of the impairments defined in paragraphs (1) or (2) but is treated by the employer as having a substantially limiting impairment." 29 CFR 1630.2(I); 28 CFR 35.104.
f. Disability does not include, "[t]ransvestism, transsexualism , pedophilia, exhibitionism, voyeurism, gender identify disorders not resulting from physical impairments, or other sexual behavior disorders; compulsive gambling, kleptomania, pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs." 28 CFR 35.104. See also ADA Title I and V.
2. Qualified individual with a disability. To be entitled to employment or participation in programs, services, or activities, a handicapper must be otherwise qualified for entitlement or to participate. "Qualified individual with a disability" is defined in Title I of the ADA as, "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 Title I, consideration shall be given to the employer's judgement as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 USC 12111(8). For purposes of Title II of the ADA, the Department of Justice has defined "qualified individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 28 CFR 35.104.
3. "Reasonable accommodation" is defined in Title I of the ADA as including, "[m]aking existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 USC 12111(9). The EEOC has further defined "reasonable accommodation" as, "modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desired; marginal functions of the position. A job function may be considered essential for any of several reasons, including but not limited to the following: the reason the position exists is to perform that function; the limited number of employees available among whom the performance of that job function can be distributed; and/or the function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function. Evidence of whether a particular function is essential includes, but is not limited to: the employer's judgment as to which functions are essential; written job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the incumbent to perform the function; the terms of a collective bargaining agreement; the work experience of past incumbents in the job; and/or the current work experience of incumbents in similar jobs." 29 CFR 1630.2 (n).
5. "Auxiliary aids and services" is defined in the ADA as including, "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments; qualified readers, taped texts, or other effective methods of making visually delivered materials available to individuals with visual impairments; acquisition or modification of equipment or devices; and other similar services and actions." 42 USC 12102(1).
6. Undue hardship. Employers are required to provide accommodation unless the accommodation would cause the employer to suffer an "undue hardship." Undue hardship is defined by the EEOC for Title I purposes as significant difficulty or expense incurred by an employer. The EEOC also states that, "[i]n determining whether an accommodation would impose an undue hardship on an employer, factors to be considered include: the nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding; the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; the overall financial resources of the employer, the overall size of the business of the employer with respect to the number of its employees, and the number, type and location of its facilities; the type of operation or operations of the employer, including the composition, structure and functions of its workforce, and the geographic separateness and administrative of fiscal relationship of the facility or facilities in question to the employer; and the impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduce business. "29 CFR 1630.2(p). See also 42 USC 12111(10).
7. "Facility" is defined by the Department of Justice for Title II purposes as, "all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure or equipment is located." 28 CFR 35.104.
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