Greetings everyone and welcome to the ADA audio conference series. We are talking prior to joining the all of you today and we realize is 20th anniversary. This program is being brought to you by the ADA National Network as well as sponsored by the Great Lakes ADA center. Our session is the ADA anniversary update and we are celebrating 26 years of the anniversary of the Americans with Disabilities Act. We have individuals participating today in a variety of different modes. We have people who are on the telephone and others who are following along in the webinar platform and it is closed captioned through the webinar platform. When we conclude with our remarks from our presenters today there are no PowerPoint slides for today's session. It is going to be remarks from presenters we will be giving instructions to ask questions. And that will be the main content of the program. So let me just start by introducing our presenters. We have Sally Conway who is the deputy chief of the civil rights division within the U.S. Department of Justice and we have today as first time joiner and Sally has joined us year after year and you may know her from other conferences and we have a newcomer and we welcome to the program Amanda Naseles who is the deputy chief within the civil rights division of the U.S. Department of Justice and we have joining us today someone many of you are familiar with who is has been a long standing supporter and part of our program here with ADA Audio Conference Series; that is Sharon Rennert who is a senior attorney advisor within the ADA and Gena division of the Office of Legal Counsel with the U.S. Equal Employment Opportunity Commission. I think by just saying those three names and giving you the title lets you know that we have a wealth of information and expertise available to you today for your questions that you might have.
How we are going to structure today's session is as I said, our presenters are going to give remarks about their agency's activities and we will be opening up at conclusion of remarks for questions from you. You can be thinking about them as the presenters are presenting and if you are in the webinar platform you can submit your question while we are talking. So you don't lose it when we get down to the point where we will be asking questions and taking them from the telephone. We tell you to jot your question down now and then as soon as John the operator gives you instructions you can go ahead and cue in to be able to ask your questions and we will go one at a time for that. So we are going to start out with Sharon Rennert from the Equal Employment Opportunity Commission who is going to give us her remarks and then we will transition in to the Department of Justice. We will be hearing some about the employment issues that the Department of Justice is also dealing with before we hear about the rest of their activities covering a wide variety as you know under Title II and Title III of the ADA. I am going to turn the microphone over to Sharon Rennert with the equal employment opportunity commission.
Thank you Robin. Hello to everyone participating today. I just want to take a few minutes to review a few things because the favorite part of this program for me has always been the extensive focus on your questions. And so I want to make sure we have loads of time for that.
In terms of activities here at the EEOC I am going to spend the bulk of my time going through the highlights of EEOC's recent final rule on employer wellness programs under the ADA. But before I get to that, just pointing out that there is one more final regulation that EEOC hopes to publish this fall. It is our expectation we will publish this fall. For those of you either who are federal agencies work for federal agencies, might consider working for federal agencies it concerns what's called the model employer rules for federal agencies. This is under the Rehabilitation Act. The sister law if you will to the ADA. It does not apply to state and local government entities or to private employers. But the model employer rules under section 501 of the Rehabilitation Act basically, it is an affirmative action obligation and the final rule will flush out what it means to engage in affirmative action for individuals with disabilities; what it means to be a model employer. The EEOC has already issued a proposed rule and received a lot of comments both from federal agencies, individuals with disabilities, disability rights organizations. We have gone through all those comments. We have drafted or putting finish touches on drafting a final rule. Unfortunately I cannot go in to any details because nothing is quite finalized there. So you have to stay tuned. But as I mentioned our expectation is we will publish a final rule this fall.
In terms of other things that we have been focused on I hope that people are aware of the fairly recent publication from the EEOC addressing leave and employees with disabilities. Both leave programs that employers generally offer to all employees as a benefit of employment and how employees with disabilities must have equal access to such leave programs. But then, leave is a general accommodation. Generally where an employer doesn't have any leave that it offers or an employee with a disability has exhausted a leave that an employer generally offers that's where leave is a reasonable accommodation would come in to play and we a few weeks ago put out a publication addressing all of these leave issues. This is not new guidance or new policy from the EEOC. Rather it was trying to put in to one publication all the information that EEOC has on these issues. The reason for doing this is No. 1 we have been asked rather than people having to look up several different documents could we put it all in one place. But also leave tends to still be a very big issue, both with employees and employers. And one that still causes confusion which includes how the ADA's reasonable accommodation requirements regarding leave intersect with the Department of Labor's family and medical leave act requirements.
The FMLA requirements when an employee needs FMLA leave for his or her own medical condition. So we wanted to kind of put it all in one place. If you haven't seen it, again the EEOC website has that information for you.
In addition to kind of having a spotlight here at the commission on these issues we have also tried to put a spotlight generally in our litigation on reasonable accommodation issues. They still tend 26 years later as Robin mentioned to still be big issues for employers for individuals with disabilities exactly how it works regarding the whole gamut of accommodations. And so this continues to be a very large part of when EEOC does pursue litigation. That tends to be one the biggest issues that we focus on.
But as I started I really want to spend time reviewing the main provisions of our recent final regulation on employer wellness programs. This is a very big issue for many people. Hopefully for a lot of you participating today. And it is one that also can cause a lot of confusion and be very complex. Unfortunately a lot of very specific terminology, specialized terminology and so I want to kind of just hit some highlights with it.
Obviously when we get to the question and answer portion if there are questions on this, I would be more than happy to do my best to answer them. But just to kind of review what EEOC said and why we said certain things. The reason that we felt a need to kind of get in to this issue is that obviously we have gotten lots of questions over the years about wellness programs and their coverage under the ADA. The specific ADA provision that created uncertainty about how wellness programs might operate and how they need to be covered under ADA is that the ADA regulates employer's ability to require of employees medical exams or to ask of employees’ disability related questions. Disability related questions primarily mean any kind of medical question directed at an employee.
So for simplicity sake think of it as medical questions. Under the ADA any time an employer wants to require a medical exam or wants to ask disability related questions they must be job related and consistent with business necessity. The ADA does have an exception though for what it terms voluntarily health programs. Now when the initial ADA regulations were drafted back in 1991 the EEOC really did not elaborate, Congress frankly did not elaborate on what voluntary health programs were and frankly back in the day there weren't many of them. In the intervening 25, 26 years wellness programs took off. They really were not present in a lot of workplaces or on a very, very small scale. But they became far more popular with employers and with a lot of employees as well and as wellness programs grew in the workplace that's when there were more questions about exactly how this would fit under ADA.
It also became more of a question after the Affordable Care Act, often referred to as Obama Care was enacted because there are provisions within the Affordable Care Act governing the use of wellness programs. So with all of that as background the EEOC proposed a rule and obviously finally adopted a final rule on when is it that employer wellness programs must comply with the ADA or put another way, when is an employer's wellness program falling under that exception of being a voluntary health program such that the employer is free to have medical exams or ask disability related questions. So the first thing is that the wellness program actually does have a medical exam. This can be what's often called biometric testing, blood test, for example, would be biometric testing. But where there is a component that is either a medical exam or asking disability related questions. Health risk assessments, HRAs for short, those clearly are asking disability related questions.
If you have a wellness program that is not asking an employee any medical questions, not conducting any sort of medical exam, then it is not covered under this ADA rule. There is no reason and that a lot of wellness programs don't have questions or medical exams. They may just invite people to sit in a class and listen on a particular health topic. So those kinds of programs are not implicated at all under ADA. Only to the extent if somebody needed say a reasonable accommodation to attend one of these classes, say a deaf employee needs a sign language interpreter, then yes, the employer must provide a sign language interpreter to make the class accessible. But there is not going to be any other ADA issue there. But where there is either medical exam and/or medical questions, that's where these rules have to be followed that EEOC recently published.
Now we have got two kinds of wellness programs. There are ones that are again I said there is a lot of legal terminology that one has to put up with one here. Health contingent programs may be programs where an employee has to achieve a certain kind of health outcome. For example, lowering one's blood pressure or lower one's cholesterol level. Health contingent programs can also include ones that require you to perform certain activities. For example, walk so many miles in a day or in a week. Or a number of steps you have to have a number of steps per day. Those are also considered health contingent programs.
Then you have participatory programs. So it is not that you have to engage in a certain physical activity or achieve a certain medical outcome. Rather you have to participate. Now participate can be I mentioned a moment ago HRAs, health risk assessments. Those are considered participatory programs.
The ADA wellness rules apply to both types. Health contingent and participatory programs. And so either kind that an employer offers or can offer both then it has to comply with the ADA wellness rules. It doesn't matter how the information is going to be used ultimately. It is the mere fact that there is a medical exam or there are medical questions being asked. It is not necessarily about how the information is going to be used. The wellness rules also apply regardless of whether the wellness program is part of the health plan or not. EEOC worked very closely with the federal agencies that are implementing the Affordable Care Act, Department of Labor, Health and Human Services, the internal revenue service.
We wanted to be consistent with the Affordable Care Act requirements regarding wellness programs. We did not want to put employers in the position of having conflicting requirements under the two. They may not be identical requirements because we have two very different laws, obviously the Affordable Care Act and the ADA have very different objectives. Therefore they are structured differently, the objectives are different. But we wanted to make sure that on wellness programs that employers were not going to be in a position of having to do one thing under the Affordable Care Act and then in effect violate the Affordable Care Act because we are saying oh, no you have to do something different under the ADA. We may be asking you to do something different but it is not going to put you in violation as an employer with the requirements under the Affordable Care Act. So Affordable Care Act is all about health plans. Therefore it only addresses wellness programs that are part of a group health plan.
But ADA isn't about strictly about group health plans. Therefore from an ADA perspective it doesn't matter whether a wellness program is attached to a group health plan or not. Any wellness program that either asks medical questions or requires a medical exam it has got to be consistent with these ADA requirements.
For those of you who are very closely following the ins and outs of the ADA wellness requirements may be aware there have been legal challenges involving what's called the safe harbor provision of the ADA. This basically the argument goes for some employers means that essentially employers can do whatever they want and wellness based on this safe harbor provision. Is protects employers who want to structure their wellness plans in any manner that the employer chooses. EEOC rejects that reading of the safe harbor provision. We believe that when you read the statute, the original ADA statute the safe harbor provision is only protecting employer's ability to structure their actual health insurance plans. And to engage in standard insurance practices safely without violating the ADA.
And so one of the things that the wellness regulations do to make this clear is we have a regulation now that explains the safe harbor provision doesn't apply to the creation and structuring of wellness plans. Now employers can again, the important thing here is wellness plans are supposed to be voluntary. People are supposed to voluntarily choose to participate. As we all know a lot of employers try and provide incentive. Now these might be structured as a reward or they may be structured as a penalty to get employees to participate in wellness plans and so the issue before EEOC became when is it that a wellness plan would no longer be considered voluntary. When is it considered to be coercive and under the Affordable Care Act does permit these incentives, whether structured as rewards or penalties up to 30% in most Cases of the total benefit that you can give an incentive worth up to 30%. Essentially EEOC adopted that. That 30% maximum. We base it on the self-only plan available to employees regardless of whether a particular employee is in a self-only plan. Employee may be in a family plan or, you know, have more than just the coverage for him or herself. Nonetheless the touch stone in the ADA regulation is an employer's self-only plan. And you get up to 30% as your incentive for this. Now remember only applies if there is medical exams or medical questions. If there is not then there is no limit on whatever incentive an employer may wish to offer.
The rule does remind employers very strict confidentiality requirements for a lot of people with disabilities and disability rights organizations. This was very important, important to the EEOC as well that any medical information here confidentiality attaches to it. Employers cannot simply bandy about this information. In fact, an employer cannot get information on particular employees. So, for example, you fill out one of these health risk assessments that information, you know, if I fill it out, employer can't find out; Sharon Rennert what were her answers to these questions. Employers are only permitted to get that kind of information in the aggregate. So it is anonymous. They can't go back and find out about any specific employee. So we have very strict confidentiality requirements here.
These rules will go in to effect for any health plan as of January 1, 2017. And thereafter. So it is not in effect yet in terms of current health plans or current voluntary wellness programs. So that's kind of the complexities of the wellness regulations. As I said if you have questions later on happy to try to answer them but with that let me turn it back over to you Robin.
Thank you very much and this might be complicated for people especially if they have not been following these issues. It may be new that this was an issue. So hopefully the information you provided can help clear those up and I saw a few questions which came in already that we will address in the Q and A session.
So in keeping with employment we are going to next hear from Amanda who is with the Department of Justice and she among her many different things that she deals with also is involved with employment as it relates to the activities that the Department of Justice does with employment in Title II entities. I am going to turn the microphone now over to Amanda and she can explain this issue further.
Hi everyone. Thank you for having me on the program today. As Robin explained the Department of Justice also has an enforcement authority actually under Title I of the ADA and most people know the EEOC enforces the ADA but Department of Justice also has responsibilities when it comes to public employers. So after the EEOC has investigated a charge against a state or local government employer, then those charges can come to the Department of Justice for our further litigation. And employment is such a critical area of the ADA and a critical area for people with disabilities and the Department of Justice has made it one of its priorities and has really been taking on more and more litigation under Title I of the ADA. So I am just going to mention some of our recent litigation under Title I. We have a number of consent decrees that we have reached with public employers. One of them is the county of riverside California and this came about because a job applicant applied to be a probation officer with the county of riverside and he was offered the job conditionally but then when his medical exam revealed that he had epilepsy which was controlled and has been for many years, the employer revoked the job offer. The applicant was fully able to perform all the job duties and there were no, you know, risks associated with his epilepsy doing this position. So when we got the matter we investigated and were able to reach a consent decree with the county of riverside california and the county agreed to pay the applicant $50,000. Also offer him the position as a probation officer. And then he also were to provide training on the ADA for their employees and file reports on their compliance with the Justice Department. A second case that we litigated was against the boulevard county and similar situation in that a job applicant was applied and was offered a position to be a correctional officer and this was an applicant who served as a correctional officer for many years in different facilities and then again after he was given the conditional officer and started working and he had a medical exam and disclosed that he had previously had diabetes on the basis of his history of diabetes the employer revoked his job offer and he was out of a job. So we again brought this to court. We were able to reach a consent decree. Again the applicant under the consent decree is to be reinstated to a correctional officer position and also to get approximately $100,000 in damages. Again under the consent decree we require training of supervisory employees under Title I of the ADA so they understand the obligations to try to prevent this kind of discrimination from happening again. Another case that we handled in the past year was excuse me, against the university of Michigan and this involved an employee who while employed there became disabled and was no longer able to perform the essential functions of her job. She sought an accommodation from the employer and sought to be reassigned but the employer at that time had a policy where they did not reassign employees because of that I disabilities needed a reassignment as a reasonable accommodation. So again we brought this case and were able to negotiate a consent decree. Actually the consent decree involved two different employees who needed reassignment because of that Is disabilities and under the consent decree both employees were awarded back pay and damages and the one employee had already been reassigned. And we included policies that they had to -- the employer had to revise their policies and provide training for their own employees. And just one last case we are currently in litigation against the sheriff of the city of Richmond Virginia. Again this is a reassignment case where a deputy sheriff was -- became disabled and was no longer able to perform the essential functions of deputy sheriff job and sought to be reassigned to a vacant position that she was qualified for and that's ongoing. In the realm of employment we are also working on enforcing the rights of people with disabilities to be employed under Title II in our Olmstead work and Sally is going to touch on that when she talks about our Olmstead work later on in this presentation. And so I'm going to turn over to Sally to talk about some of our work under Title II and III and the general work that the disability rights section does.
Hi everyone. Good afternoon. Good morning, I am sure to some of you and I just wanted to say that it is amazing that this has been going on, this yearly update that the ADA network has done for 20 years. It is just remarkable. I'm very pleased to have been a part of a lot of them. I won't say anything that will reflect on my age. But it is always a pleasure. And it is always a pleasure to work side by side with the network of ADA centers.
It is a really neat program and it is -- we all benefit from it and they are just terrific.
I'm going to talk first about and a lot of you may know about this but just because there is an action to be taken by people who believe they may have been discriminated against I want to briefly talk about our Greyhound agreement that we answered entered Greyhound bus lines we entered in to a consent decree with them this past February.
And I think one of the things that is so important -- there are a number of things but the first is just the vastness of Greyhound. They serve more than, you know, 3800 destination and more than 18 million people each year in North America and I think what you also think of in terms of folks who may use Greyhound yes, I mean a lot of it may be in urban areas but, you know, not everyone can afford to fly. Not everyone can get to an airport. And in rural areas, you know, Greyhound may be the only intercity sort of long distance transportation that's available.
So we had received a number of complaints that basically alleged that a number of things, that for folks who use wheelchairs, they either didn't or had terrible security devices, lifts weren't working, they wouldn't particularly for folks with mobility disabilities but who may use mobility devices like walkers and canes and crutches failure to give any minimal assistance in boarding and exiting and this often happened at rest stops and if you are on a long trip, then you are on a bus, after drinking a lot of coffee or soda you know what you are going to have to do and many of these folks who have mobility disabilities were unable to exit the bus at planned rest stops
So the other thing that is very interesting about this and it is for us it is the first time, is that Greyhound is -- has agreed to set up a compensation fund to provide relief to folks who are able to show that they experience discrimination. The interesting thing about this it is an uncapped fund. So there is not a total number of dollars at which they can stop. Nor are individual awards capped. We want to make sure we get the word out to folks for anyone who believes that they were either unable to book online or to purchase a ticket which was one of the allegations or if they were otherwise discriminated against either in attempting to purchase a ticket or while they were on a bus or if they were unable to get on the bus, the period of the harm is from February 8th, 2013 through February 8th, 2016. So it was a three-year period prior to the date of the consent decree and that -- that is that time period where people are eligible to file claims.
What -- there is a third party claims administrator and we have information on our Web page and it will take you to an external site. So don't fear that. That you will get more information and be able to fill out a claims form. All of those claims the deadline for submitting those is November 10th of this year. So I just wanted to mention that because it does require some action for folks who believe they were discriminated against in that three year period and this kind of transportation access is incredibly fundamental to many, many people with disabilities for a number of reasons and plus they are huge. So if you have questions about that you could ask us in the next section.
And I do want to just briefly although I am sure would be very unsatisfying to everyone in the audience to give you a little update very quick update about our rule making and our regulations. The first is our rule on web access for Title II entities and this has been a very long process and we had -- we had provided a notice of proposed rulemaking to OMB. This is in the title -- and the title is accessibility of web information and services of state and local government entities. And we submitted that to OMB which is the office of management and budget for them to review on July 9, 2014. On April 28 of 2016 we withdrew that notice of proposed rulemaking from OMB and at the very same time we issued and this was government language, a supplemental advanced notice of proposed rulemaking, lovingly referred to as the SANPRM. This is an additional notice in which we are trying to obtain more information about the accessibility of web information, because, you know, 2014 things have really changed in a very short period of time. So we are really seeking information. We asking people to provide information particularly about the costs and benefits of web accessibility. So please keep informed about that. And you can find that information on our Web page at ada.gov. And you could also -- there will be a link there to a regulations.gov where you can get updates.
The ADA Amendments Act as you know and Sharon mentioned, I think, that Congress amended the ADA in 2008 in order to essentially return the -- what Congress -- Congressional findings and the intent of interpreting the definition of disability broadly and this as most of you will know follows the Sutton trilogy in Supreme Court cases that significantly narrowed how we looked at and determined disability. EEOC did their regulations and we are in the process of adopting our implementing regulations so that we can revise our Title II and Title III regs so that they -- they are consistent with the EEOC's reg. The final rule cleared OMB on March 4, 2016. We do expect that that will be signed by the AG and published in the Federal Register very, very soon.
I can't give you, of course, a date. And the last one is the movie rule and this is particularly related to it is a Title III reg. Specifically to address obligations of movie theaters to provide effective communication to patrons. And this recently has cleared the office of management and budget. So they accepted the final rule for review in March and they have very recently cleared this. So I would encourage you all to stay tuned for additional information. And whenever there are comment periods, I am going to give a little plug, it is really important that people do take a little time and comment on our regulations. Because it is very important, it helps us to shape what our final rule will look like in response to comments and concerns from covered entities and folks with disabilities. So those with rights and those with obligations under the ADA. So go to www.ada.gov and you will click on our regulations and it has current and regulations in development and they will give you some information and just stay tuned. I mean this is the way the department helps to advance the law and helps shape the law. And it is a tough effort but it is a very dedicated crew that does it. So when you see this stuff comment please. It is really important because we do read every single comment. So with that I'm going to turn it back to Amanda who is going to talk about accessible technology. So you will see how the regulations inform accessible technology.
Thanks Sally. You heard about our regulatory work that's in process but while that's been going on we have been enforcing the requirements of the ADA, with respect to accessible technology. We have said in many places that even though the ADA which was enacted before the Internet really existed doesn't specifically talk about the Internet. It is very clear that the ADA covers goods and services and programs that are available over the Internet from entities that are covered by Title II and Title III and while our regulatory work is being developed to propose a technical standard for how exactly websites would be made accessible, that does not in any way undermine the existing requirements of Title II and Title III entities to ensure that goods and services and programs are accessible to people with disabilities. We all know that there is nothing more fundamental to the future of disability rights than accessible technology. We all rely on the Internet so extensively for access for everything from groceries to education and employment and it is essential to enable people with disabilities to equally access these things and it is very important for technologies to be built accessibly from the ground up. So I wanted to talk about some of our recent enforcement actions over the past year. And this past year we have done a lot of work focusing on technology and education. We investigated and reached a settlement agreement with an organization call edX and lot of folks have heard about the MOOCs and edX is a provider of MOOCs and those are high level courses that are available online and they are free and they are available to anybody in the public. So under our settlement agreement with edX they agreed to ensure that their website and their platform on which these courses are posted and mobile apps are accessible to people with disabilities. The edX was created by MIT and Harvard and has a consortium of universities that participate and other institutions create courses and post them on edX's platform. So one of things that's important about the agreement is that edX agreed to provide guidance to those institutions that are creating their courses and also authoring tools to assist them in creating accessible course content. And also because edX uses open source software which means it makes it software code freely available, those authoring tools and the software is available really to anybody who is hosting online courses like this and can use those to assist in enhancing the accessibility of their online offerings. We intervened in a private lawsuit against Miami University in Ohio and that was a case brought by a blind undergraduate who was having a lot of difficulties and barriers in accessing her course work with respect to technologies. Our involvement is to help ensure that all technologies that is used in the university setting are accessible and these include web-based management systems and university portals, course materials, Google apps for education and these are used in curricular and co-corricular activities and these are the range of what's new and what happens in technology in education today. We did file also two statements of interest. Those are briefs that we filed in existing litigation. The lawsuits were brought by the National Association of the Deaf. One is against Harvard and the other is against MIT and those address the university's online content that's available to the public and it includes a lot of courses and lectures and the plaintiff in those cases alleged that they weren't accessible to their members because those materials were not captioned. All of the information about this is available our website, ada.gov and we have a page that we have added to ADA.gov that expressly collects the information and materials about accessible technology. And I just also wanted to mention that we have a number of settlement agreements with public employers addressing their online job applications because people apply for jobs these days online and those job line job applications will be accessible and there is a widely accepted industry standard for accessibility called WCAG 2.0AA and all of our agreements reference that standard.
We have projects that access settlement agreements as well with public, state and local government entities and those include their websites.
I think we are done. I think we might have -- I might have overstayed our welcome by a minute or two. So I think we will turn it right back to Robin.
Great. Thank you very much all three of you for the information that you have been able to provide or participants today about some of the activities that are taking place in your agencies and, you know, some of it is exciting ground breaking stuff going on here in relationship to what people have been waiting for in some ways but also it is great to see that you are moving forward with some of the technology issues, while many people have said we are waiting we are waiting but it is not necessarily within the absence of an enforceable rule specific to the standards that you don't have opportunities to take action. We are going to go ahead now and kick in to the Q and A portion where this is your opportunity as participants today to post questions not only those based on information that our presenter gave you today but also could be things that you have wanted to ask them and they may not have covered that specific topic in their comments and such but it is still something that you want to have specific information on. So please feel free if you are in the webinar platform to submit your questions in the webinar chat area. You also could e-mail a question to us at webinars@adaconferences.org and we will respond to those by e-mail and we will feed them to our presenters and then at this time I am going to ask John to give instructions to those who are on the telephone so they can queue in and ask questions.
Ladies and gentlemen ,if you have a question or comment press the star and followed by the 1 key on the telephone. So again for questions, press the star followed with the 1 key and we will take any live questions.
Great. While people are gearing up for that I do have some questions that were submitted online and the first one for you Sharon. And it is is the employer always responsible for payment for auxiliary aids and services and gave the example if a health plan program, it is related to a health care plan program, does the health plan pay for the interpreter other auxiliary aids and services?
It is probably going to start with the employer. I mean if I understand the question it sounds as though the employer is going to have an outside vendor say provide a class. Say on smoking cessation. If is there is nothing in the contract that specifies who has to provide the auxiliary aids and services and most contracts don't, but you could certainly look in to negotiating that as part of the contract who has responsibility. This is a benefit that is being provided to employees. An employer even if it is not directly providing this classroom experience still has an obligation to ensure that let's say if it is a sign language interpreter, that one is there. This is no different than if an employer is sending it its employees to an outside vendor for any kind of training say, connected with performing one's job. The outside vender may well have some obligations under either Title II or Title III of the ADA. But that doesn't necessarily relieve the employer of its obligation when it is involved in any kind of benefit for employees of providing as reasonable accommodation things that would be considered auxiliary aids and services. So employers need to follow up on this. They can't just wash their hands of it. And if they want to see about negotiating in their outside contracts who is going to provide these kinds of accommodations they are more than welcome to.
Great. Thank you. I'm going to -- since I have you Sharon I am going to go ahead and direct another question to you. This individual is asking where would information on leave under the auspices of the ADA be found and if you could just maybe clarify and I know it is on website but I know there is also different documents that you have and different guidance related to leave. So anything that you have I can also input in to the area for individuals in the webinar platform and we can direct them as to where they might want to go for that.
After this program completes I can work with you so that you can put up for people the place to start is the new leave document and in it we do reference and provide the links to other documents that address aspects of leave either as a benefit of an employment or as a reasonable accommodation. So what is easiest for most people is to start with the new leave document but we will make sure that gets out to everyone.
You are talking about the one that was issued May 9 of 2016?
Yes.
I wanted to make sure I was using the correct one.
Yes, that's the one.
Great and for those in the webinar platform I did give you the URL for those on the telephone if you go to EEOC.gov under their publications section, and it is called the actual title of the document is employer provided leave and the Americans with Disabilities Act and it is dated May 9th of 2016.
Also if you go to the home page of EEOC and do a search employer provided leave, those three words that also should bring the document up.
Thanks for that additional tip there on how to go about doing that. That's great. Thank you. Okay. So let's continue on here and John -- do we have any questions from the telephone?
Question. We have a couple of questions. Karen your line is open.
Hi ladies. Thank you for the presentation. It is wonderful. Very informative. So as far as the Greyhound the window of opportunity to make a claim seems kind of short to me. And I know like I have received documents in the mail about class action lawsuits where it says, you know, you received this because, you know, you were provided services at that time. If you want to make a claim contact us. Was the same thing done for people who were provided services through Greyhound during this time of 2013 to 2016? How would they know, you know, to make a claim?
Thanks. This is Sally. This was a little bit different and I think part of the issue and we still encourage people to file a claim is very often there is no paper trail. So it was difficult on that end but this is -- this is the term the three years, you know, up to, you know, preceding and up to the date of consent decree. And a nine-month period in which to file your claim. What we have done is we have done everything that we could here from DOJ to get the word out. And we have a couple of attorneys that were involved in have spoken to a number -- National Council on independent living graciously hosted a call and it is prominently displayed on the Greyhound website. And it is really difficult that to make sure everybody that was affected and has a potential claim of discrimination to contact them. It is very different, you know, I get some of those the class action things. But it is someone with whom I might have some account. So is there is a record of people that had an active account during that time period. I know it is not the answer you wanted. But that's all that I can tell you. And I think -- I don't know that I can really say any more. It is a kind of a different -- it is a different transaction that gets made. Lots of the purchases are in cash. People have no records of them and they don't have a record of who gets on the bus.
Or whether they have a disability or not.
That’s right.
Thank you.
You are welcome.
Thank You.
Next question comes online I will go back to -- the is a question for you Sharon and not sure what guidance you will be able to give but this is someone who is asking specifically about what information could or can you direct that might be related to somebody with a disability such as a concussion but they received as an athlete. And information on how the ADA might cover that person.
Well, the ADA does not care how one's disability came about. So I mean in this case through athletics but it is more what is the current state of person. Now some people can have a concussion that ends. They for a period of time have limitations but it resolves itself. And other people may have ongoing issues especially if it is a very serious concussion or more than once if you played football and you have a lot of head injuries then it may be ongoing. If you meet the definition of disability which as everyone knows is not necessary a particularly hard threshold but I can think of a number of ways that people with concussions would meet the definition of disability. Then it -- then you have got your coverage and then it really depends on what the specific employment issue is. If somebody is seeking reasonable accommodation they need to request it of the employer saying that you have a concussion. And what it is that you are seeking, what is the workplace limitation issue problem coming up because of the concussion. And then expect that there will be a dialogue most likely with the employer potentially asking questions about the disability to better understand why it is a disability and how it is presenting limitations and about the accommodation and how that will resolve the problem or potentially alternative accommodations. If it is about an employer that doesn't want to promote you, or give you a certain job opportunity because of a concussion, again there needs to be more information, whether the employer has some legitimate concerns or whether the concerns is based on assumptions or stereo types or misinformation. So that becomes a little harder to identify but basically I don't know that the EEOC has anything specific. In fact, I know we have nothing specific addressing concussions. But if you just look at general ADA information about the employment provisions the rights of people with disabilities in the employment context all of that will apply no matter what the disability is including those that begin with concussions.
So the temporary versus long term may occur here.
That goes back to the whole thing about some people may have a concussion that is concussions can range. So if it really was more at the minor side, if you will, if you consider any concussion more minor and it really resolved fairly quickly and no ongoing problems and there is a lot of information on the EEOC website about the definition of disability. So if you are not sure about whether one's particular concussion is covered you can certainly start there. It is look at the information. What is it that makes any kind of an impairment and concussion is an impairment. A disability.
Great. Thank you. Go back to the telephone. Are there any questions from the telephone, John?
Right now I am showing a question from Judy. Your line is open.
Thank you. Sally, and Amanda I know this is something that you don't have direct control over but we have a participant that's asking you may from your dialogue and discussions some knowledge that you might be able to share but, of course, everyone has been waiting for the rights of way guidelines to come out from the U.S. Access Board and so one of the questions there is are we aware of what the status of that is and our follow up to that would be what would be process for the Department of Justice to make those an enforceable stereo -- as part of the current ADA standards?
Wow. I am going to do my best to answer this. As far as I know things are moving along with the prow rules and we have been -- as we always do, we work very closely with the Access Board. We are a member of the Access Board, the attorney general is and delegates to the Civil Rights division to be active participants on her behalf. Like anything that if you guys can remember back to the 2010 revised regulations, the Access Board is charged with developing guidelines. Now to the extent that these guidelines would relate to federal facilities which are covered by the Architectural Barriers Act they are enforceable by the Access Board. The Americans with Disabilities Act, it is clear that agencies that have enforcement authority are required to adopt standards and award changes to standards from guidelines that are consistent with whatever the guidelines are that the board put out. It isn't until they are adopted as standards that they are enforceable by the Department of Justice, for example. Or Department of Transportation which has enforcement authority. But we do work with them. We have been very actively involved as lots of other agencies. But in terms of a timetable I don't dare to hazard a guess. I'm honest.
I know that by participating in several of our activities and events a lot of it is out of the hands or the control of agencies like yourselves or even the Access Board because there are other office management and budget and other entities that are engagement in the rule making process that you have their own time frames and own timelines in looking at these things and I know that's been part of the process and I know there has been a lot of activity and interest and passion within the Access Board to get these out there because they are so long standing. They do on a regular basis make comment to the fact in the absence of them being finalized they are still out there for entities to look at for practice when they are doing things and should be reminded that the Federal Highway Administration has adopted them and part of anything that is funded through the Federal Highway Administration. So many times, I don't think that people are aware that there are things that are happening in your towns and communities that have Federal Highway Administration dollars associated with them that do need to follow the Prox as they have been put out so far and are there and have been adopted by the Department of Federal Highway Administration. That's another area.
And if I could add one more thing, covered entities are required to make a good faith effort to comply. And sometimes there is an absence of standards. And so if you -- if an entity makes a good faith effort and they look to something that is reasonable that is a standard that may be in development by a federal agency, you know, that makes perfect sense. It just makes perfect sense, Robin.
Yep. Definitely. Go look to authority out there and what's already going on. Don't put your head in the sand or put your blinders on.
Can I jump in one more time? I want to encourage folks, especially the woman who asked Karen, about the Greyhound, how the heck are we supposed to know about it. I would like to encourage you all to go the ada.gov website and sign up. As soon as you are off this audio conference sign up to get our e-mail alerts and then you will be notified by e-mail of all the hot breaking news and you will know it before your neighbor. So it is a plea.
And that's important, before your neighbor.
Exactly.
Great. That's a good plug and a good follow-up to a comment that another participant made in that they appreciated hearing from all of you today but they also wanted to communicate the fact that there is a difficulty in communicating with people with disabilities especially as to where they can go for help and we have heard you mention earlier to the recent meetings some of your staff had on the National Council on Independent Living but we know the disability community is so huge and diverse that nobody everybody is connected to those organizations. In fact, those organizations serve a fairly small sector of the population in general and it is always those individuals who don't know their rights that we’re constantly struggling to try to reach. Can you speak briefly, both Sharon and Amanda and Sally to what efforts and what degree does your agencies reach out to not always your known entities, like your independent living council but what efforts do you have in place to go out further to some of those groups that may have not always be connected to some of our traditional disability groups to make sure there is information out there.
Sure. You know, we have -- think one of the things also to remember is not everyone with a disability is connected to any kind of a group. It is a huge mistake if we think that if you just speak to one group, you know, it is like I use a wheelchair and somebody says oh, I know somebody who uses a wheelchair from Minnesota and you guys must know. You don't. I know that people for Internet access and we try to communicate as much as we can by getting people to sign up for e-mail alerts but we also have a pretty active speaking and presentation, speakers' bureau that we speak to an awful lot of different kinds of groups, both covered entities and folks with disabilities. And, you know, I think we also try to meet with groups or to get information out to groups like the ADA centers also but like, you know, sort of umbrella groups, like consortium for citizens with disabilities that are made up of a ton of different kinds of groups. But I agree, it is really hard especially to reach individuals and, you know, people have suggestions. We are always willing to listen and see if there is a better way. Always.
Yep.
This is Sharon and I can sign on to everything that Sally said and it is very hard. You start with reaching out to organizations on a national level and then a regional level, a state level and down to cities. Then, you know, down to cities because you realize at the federal agency you are not always in the best position to reach a lot of people and as Sally said that's why we work with the ADA centers which are going to have networks beyond the ones we can readily get to as hard as we may try. Just as Sally said, EEOC also tries to make it as easy for people who do have access to the Internet who can get to the EEOC website, EEOC.gov as soon as you get to our home page a box pops up saying stay connected and asks you to enter your e-mail address so that we, too, can send alerts on things that we are issuing. So if you are not signed up please do sign up at the EEOC website for that. And I think that again Sally said anybody who has ideas especially for people who may not be connected to various organizations, I am thinking about the question on concussions and then people develop disabilities, it is not that they necessarily had them all their lives and a long period of time and where do you turn for information, I do think that even with the people who are not readily connected to the Internet even in the 26 years and I have been here that whole time, there is no question the Internet has made a huge difference the information that people find by Googling and things coming up. Just as we get inquiries from folks now that we probably, definitely would not have gotten 24, 25 years ago when the ADA was first coming in to play. But please let us know how we can do better.
Great. Thank you. We have got a question here, let me go back to the phone and see if anybody queue in in the meantime on the phone. John are we still -- don't want to forget those folks.
Again ladies and gentlemen, if there are any questions from the phones you can hit the star followed with the 1 key at this time.
Great. Amanda and Sally, you’ve got a question here. Do you have any recent cases or anything that address the responsibility for successful technology communications for shows or speakers that tour to many venues in many states and not just a one time type of thing. Could a producer or local host or someone legally say we won't provide ASL interpreting or open captioning but we will provide closed captioning on Smartphones or something like that, for instance, that, you know, after the fact and it wouldn't allow me to take advantage of any type of discounts or anything that were available in advance of the comments being made.
I don't think we have any enforcement matters that track maybe that particular scenario but the nice thing about the way the ADA requirements work you have -- any entity that's covered by Title III, it is subject to the auxiliary aids and services requirements of effective communication. So I mean an entity if somebody needs an auxiliary aid or service in order to equally access that good or service, absent fundamental alteration or undue burden the entity is obligated to provide the auxiliary aid or service and sometimes maybe a person wants one specific thing and entity says we provide this other thing and if it is effective that's probably okay.
Okay. Great. And Sharon I have somebody who is asking where they could find some additional information in relationship to and discuss if someone was HIV positive as it being a disability.
In terms of -- probably the best thing to do is again you go to the EEOC website at EEOC.gov and I would use the search function and I would type in both HIV and AIDS. I do both of them. In terms -- there is not going to be a publication devoted to this topic about coverage. But EEOC has pretty much taken the position that HIV infection, it doesn't have to be to the point of AIDS but HIV infection itself would meet the definition of disability coverage here. It is not difficult to establish and we have referenced this. You would have to kind of go and search a bit in the regulations addressing the definition of disability. That discusses different kinds of impairments including HIV infection and the discussions around HIV within the regulations on disability itself. What is a disability. Do mention HIV infection. If there is any real problem about finding something about that if you sort of go through if it is okay to use Robin and her organization to help us connect I would be more than happy to work with you to find that information.
Thank you. Thank you very much. This one will go back to Amanda and Sally. And this is kind of a multi part question here. But how would the new regulations that may come from the Department of Justice in your proposed and your pending rule making related to Web Accessibility apply to apps that are developed and available for sale like through an iTunes or something of that nature, an AppStore. Specifically using the example there has been a lot of attention and a lot of activity only PokemonGo and many park districts and other entities are establishing programs and such they are promoting the use of that particular app as part of their activities and such and that app has been determined that it does not have full accessibility for all different types of disabilities. How would the ADA address this particular issue?
Well, you know, the question about apps is -- there is a question addressed in the supplemental advanced notice of proposed rule making that I talked about that addresses how to cover or how to address mobile apps. So there is a question about that. So we encourage anybody to comment. The comment period is still open for that. We would love to get comments or thoughts on that issue. The state or local government has a program and that program requires the use of some particular technology or whatever, I mean that is part of their programs and services and they have obligations to ensure that they are not discriminating against people with disabilities. The one thing that we have done is somewhat analogous, we have dear colleague letter on our website that addresses electronic readers. It was sent out to university presidents and it said when you are a university and you have a program your students are enrolled in a program and you are requiring electronic readers you have to make sure that the technology that you are using is accessible to your students have equal access to the programs. So that is the basic ADA principle.
Great. Thank you. I think PokemonGo is on everyone's mind as they watch people walk down the streets with their phones in front of them. I think -- Sally,no session would be a true session if we didn't have a service animal. We have a question that I know you were waiting for. A question that someone has in relationship to breed specific regulations that communities or facilities and such where they would preclude some certain breeds, typically identifies as dangerous breeds to enter the facility what if someone has those breeds trained as a service animal what would apply.
It is a good question and we get it a lot and it usually relates to Pit Bulls.
There is a lot of lists.
In the old days, you know, lots of communities had bans on keeping what were called police dogs back then or German Shepherds as pets because they had a terrible reputation. And now German Shepherds are used all the time as service animals and they are family pets. Our regs are very clear that there is, you know -- there is no breed limitation on the type of dog that can be a service animal. It is very clear. And this would fall under policy modifications. And communities can have all kinds of, you know, ordinances, laws regulations but if it is necessary to modify that to allow a person with a disability to fully access either the Title II entities or fully participate within, you know, the business community, they are going to have to do that. In our guidance and I would encourage folks if you haven't read it yet or don't have it available, when we publish the revised 2010 regs you will see there's the reg itself and then there's what's called section by section analysis and guidance. And there is a really, really good discussion about this particular issue because we have got a ton of comments on it. And, you know, many people wanted to say what you couldn't use a Pit Bull. You couldn't use other types of dogs, a Doberman as a service animal because we know that they are just born nasty. And what we have said is that and we did a great deal of research, is that, you know, Pit Bulls are trained to be vicious. They are not born vicious. And there was no scientific evidence anywhere and that is in the guidance and if, you know, that can be very helpful in terms of if someone does have a Pit Bull as a trained individually trained service animal and it is still under the control of its handler and it is well behaved and it is not barking. It is not mashing its teeth it is not being aggressive that can be a service animal. It really is not the breed but you go back to one of the fundamental obligations of both Title II and Title III entity is to modify policies, practices and procedures where necessary to allow someone to fully participate because of a disability.
Great. Thank you. Of course, as soon as we said service animals it sparked other questions to come through on that issue. I knew it would.
I know.
So this particular question is what is DOJ's activity related to fraud and service animals? Many local governments or state governments are passing legislation as it relates to fraudulent representation of service animals. Is Department of Justice involved in any of these activities?
The answer is no. We really can't be. This is a civil rights law. We have been involved on a handful of occasions for say a company that appears on the Internet and is selling vests and certification and a picture and all of that. That they either use the DOJ seal or have represented themselves to be an agent of U.S. Department of Justice and that is a felony. And we can and we have taken action on I can think of three right now offhand. But the other stuff, the fraud issue has been there from the very beginning. It is awful. It is frustrating. But there is fraud that happens all along the way, any time you do business. It might be helpful to take a look oddly enough at our ticketing, ticket sales, guidance because that was a huge issue of people being able to purchase accessible wheelchair seating online and we provided some good information and that is it is typically -- it is a state issue. Or it may be a local jurisdictional issue and there is nothing that prevents any -- any community or Title III private entity from saying look at it, if we find out you are misrepresenting and it is fraudulent we are going to prosecute to the full extent of state law. And really the issue is unless the -- somebody misrepresents themselves as a federal agency or the Department of Justice there really is very little that we can do. We did put sort of a like a text box when we did our revised service animal questions and answers. But there is very little that we can do and it really is a state and local government kind of an issue. And people filing complaints perhaps with the state attorney general's office consumer protection, consumer affairs or something like that. But we are incredibly limited.
Thank you. So we have concluded we are at the bottom of the hour and thank you to all three of you, Amanda, Sally and Sharon for again sharing your wealth of information being willing to be frank and honest with us as it relates to what is happening with your agencies and in response to some of the questions that were asked by our attendees today. Thank you all for your participation and yes, we all have been here a long time and that is a testament to all of your perseverance in this process but as we are rounding out and celebrating the 26th anniversary of the ADA. I hope all of you will be involved and engaged in your own community activities across the country and continue keep the ADA in the forefront of the attention that are both covered by the ADA and those who have responsibilities under the ADA. And I would like to invite next month's session in August. We will be changing gears and we are going to have presentation that is going to focus on Common Errors and the Design and Construction of Accessible Lodging Facilities. For those of you who are interested in that particular topic that is happening on August 16 registration is available on website at www.ada-audio.org. You will receive a follow-up e-mail related to how you can go about obtaining a certificate of attendance for today's session as well as information about the availability of the recording from today's session and when that information will be available. We also are seeking your feedback on today's session. So there is a link to online survey and take some time to fill that out if you can. We do really appreciate your feedback and also helps us structure our future programs because we ask you a question about what other topics you would like to hear about and we value and want that feedback from you. Thank you to our presenters and thank you to everyone who has participated in this program and I hope that everyone has a great remainder of the month of July and thank you we are now concluding today's session.