The ADA: Questions and Answers
The Americans with Disabilities Act (ADA)
Brief description of this law
Passed in 1990, the ADA is a federal civil rights law that prohibits discrimination against people with disabilities on the basis of disability. The ADA defines a disability as a physical or mental impairment that substantially limits the individual in one or more of the activities of daily living such as: working, walking, listening, seeing, or the limitation of self-care. The law also prohibits discrimination against individuals with a history of such impairment, such as cancer patients in remission and those considered by others to have a limitation, such as individuals with severe facial scars.
The title I employment provisions apply to private employers, State and local governments, employment agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Employers with 15 or more employees were covered two years later, beginning July 26, 1994.
Additionally, the employment practices of state and local governments of any size are covered by Title II of the ADA, which went into effect on January 26, 1992. The standards used under Title II to determine whether there have been Employment discrimination depends on the fact that the public entity in question is also covered by Title I. As of July 26, 1992, if a public entity is included in Title I, then the regulations of Title I apply. Otherwise, the rules of article 504 of the Rehabilitation Law will apply. From January 26, 1992, when Title II came into force, until July 26, 1992, when Title I came into force, public entities were subject to the rules of Article 504.
The ADA prohibits discrimination in all employment practices, including job application processes, hiring, firing, advances, compensation, training, and other terms, conditions, and privileges of employment. It also applies to hiring, advertising, office, temporary layoffs, licenses, fringe benefits, and all other employment-related activities.
Job discrimination against “eligible persons with disabilities” is prohibited. People who are discriminated against for having a known relationship or kinship with a disabled person are also protected. The ADA defines a “person with a disability” as one who has a physical or mental impairment that substantially limits one or more major life activities, has a history of such impairment, or is considered to be impaired.
The first part of the definition makes it clear that the ADA applies to people who have substantial difficulties, that it is the opposite of a minor difficulty, and that these difficulties should limit important life activities, such as seeing, hearing, speaking, walking. , breathe, perform manual tasks, learn, take care of oneself and work. A person with epilepsy, paralysis, substantial hearing or visual impairment, mental retardation, or a cognitive disability would be covered, but someone with a mild, non-chronic, short-term condition such as a sprain, infection, or broken limb, it would generally not be covered.
The second part of the definition would include, for example, a person with a history of cancer who is currently in remission or a person with a history of mental illness.
The third part of the definition protects people who are viewed and treated as having a substantially limiting disability, even though they may not have such a difficulty. For example, this provision would protect a severely disfigured eligible person from being denied employment by the employer based on fear of “negative reactions” from third parties.
An eligible person with a disability is a person who meets the valid requirements of skill, experience and training, among others, for a job that he or she holds or aspires to and who performs the “essential functions” of the position with or without a reasonable accommodation. Requiring the ability to perform “essential” functions ensures that a person will not be deemed unfit simply because he or she is unable to perform a marginal or secondary job function. If a person is able to perform the essential functions of the job but with limitations caused by a disability, the employer must consider whether they could carry out these functions with a reasonable accommodation. If a written job description has been prepared prior to the job or job applicants being interviewed, it will be considered evidence, but not necessarily conclusive evidence, of the essential functions of the job.
No. The employer is free to select the fittest available job applicant and to make decisions based on reasons unrelated to the existence or consequence of a disability. For example, if two people apply for a job offer as a typist and one of them is a person with a disability who spells 50 words per minute correctly and the other is someone without disabilities who spells 75 words per minute correctly, the employer can hire to the job seeker who writes faster if this is necessary for good job performance.
A reasonable accommodation is a modification or accommodation in a job or work environment that will allow an eligible job applicant or an employee with a disability to participate in the job application process or perform the essential functions of a job. Reasonable accommodations also include accommodations to ensure that all eligible persons with a disability have rights and privileges equal to those of non-disabled employees.
Some examples of reasonable accommodations include preparing existing facilities used by employees so that they are accessible to and available for use by people with disabilities; restructure a job; modify working hours; acquire or modify equipment; provide qualified readers or interpreters; or appropriately modify exams, trainings and other programs. A reasonable accommodation may also include reassignment of an active employee to a vacant position for which he or she is eligible, should the person become disabled and unable to perform their initial job. However, it is not mandatory to search for a position for a job applicant who is not suitable for the position for which you are applying. Employers are not required to lower quality or quantity standards to offer a fitting, nor are they required to provide personal items such as glasses or hearing aids.
The decision on the most appropriate accommodation should be based on the particular facts of each case. When selecting a particular type of accommodation, the first thing to assess is effectiveness; that is, whether the accommodation will allow the person with a disability to carry out the work in question.
No. The employer is only required to provide an accommodation for a “known” disability of a job applicant or eligible employee. The need will generally arise from a request by a person with a disability, who can often suggest an appropriate accommodation. Accommodations must be made on an individual basis, as the nature and extent of a disabling illness and job needs may vary from case to case. If the person does not request an accommodation, the employer is not required to provide it. If a person with a disability requests a reasonable accommodation, but cannot suggest which one is the most appropriate, they should work with the employer to identify it. There are also many public and private resources that can offer help at no cost.
The disabled person requesting an accommodation must be eligible and the employer must be aware of the disability. In addition, the employer is not required to provide a reasonable accommodation if it will represent “an onerous burden” on the operation of its business. “Undue hardship” is defined as “an action requiring significant difficulty or expense” when viewed in light of certain factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature and structure of the employer’s operations. When the facility providing an accommodation is part of a larger entity, the overall structure and resources of the larger organization will be considered, as well as the facility’s financial and administrative relationship with the larger organization. In general, a large employer would be expected to offer accommodations that require more effort and expense than would be required of a small employer.
The employer may be required to modify facilities to allow an individual to perform the essential functions of a job or have equal opportunities to engage in other employment-related activities. For example, if the employee lounge is located in a location inaccessible to a person using a wheelchair, it should be modified or relocated, or equivalent facilities should be provided in a location that allows that person to share the break with your co-workers.
The employer cannot ask before employment on the job application form or in the interview if a person is disabled and to what degree. The employer may ask the job applicant whether or not they can perform particular functions of the position. If the job applicant has a disability known to the employer, the employer should ask how he or she can carry out the job functions that the employer considers difficult or impossible to perform because of the disability, and whether an accommodation would be necessary. A job offer may be conditional on the results of a medical examination, as long as the examination is required of all employees who enter the same employment category regardless of disability, and provided that the information obtained is handled in accordance with the requirements. of confidentiality specified in the law. Once the employee begins work, all medical examinations and questions must be employment related and necessary for the conduct of the employer’s business. These provisions of the law are intended to prevent the employer from basing its hiring and employment decisions on unfounded assumptions about the effects of a disability.
Yes. The ADA expressly allows employers to set qualification standards that exclude individuals who pose a direct threat (ie, a significant risk of substantial harm) to the health or safety of themselves or others if that such risk cannot be reduced to an acceptable level by reasonable accommodation. However, the employer cannot simply assume that there is a threat; You must establish by objective and medically supported methods that there is a genuine risk of substantial harm occurring in the workplace. By requiring employers to make individualized decisions based on reliable medical evidence or other objective evidence rather than relying on generalizations, ignorance, fear, condescending attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities with the legitimate interests of employers to have a safe workplace.
Yes. People who currently use drugs illegally are specifically excluded from the definition of “fit person with a disability” that the ADA protects when taking an action based on drug use.
Yes. An illegal drug test is not considered a medical exam under the ADA; therefore, employers can request such tests from job applicants or employees and make decisions based on the results. The ADA does not recommend, authorize, or prohibit drug testing.
Yes. The legislative record indicates that Congress intended the ADA to protect people with AIDS and HIV from discrimination.
Nothing in the ADA is intended to supplant the role of public health authorities in protecting the community from legitimate health threats. The ADA recognizes the need to strike a balance between the right of persons with disabilities to be free from discrimination based on unfounded fears and the right of the general public to be protected.
The ADA prohibits discrimination based on relationship or kinship in order to protect individuals from actions that are based on unfounded assumptions that a relationship with a person with disabilities would affect job performance and from actions caused by bias. and incorrect information about certain disabilities. For example, this provision would protect a person who has a disabled spouse from being denied employment due to the employer’s unfounded assumption that the job applicant would take too many leaves of absence to care for their spouse. It would also protect a person who does volunteer work with people who have AIDS in the event of a discriminatory employment measure motivated by that relationship or kinship.
The employment provisions of Title I of the ADA are enforced under the same procedures that apply to discrimination based on race, sex, national origin, and religion under Title VII of the Civil Rights Act of 1964. Complaints Regarding actions that occurred as of July 26, 1992, they can be filed with the Commission for Equal Employment Opportunities or designated state human rights organizations. Repairs can include hiring, reinstatement, back wages, court decisions to stop discrimination, and reasonable accommodations. Compensation for damages can be awarded for actual monetary losses and for monetary losses, mental anguish and future inconvenience. Exemplary damages may also apply if the employer acts with intent or negligence. Additionally, attorneys’ fees may be ordered.
Some lawsuits are unavoidable. However, employers who use the period prior to the effective date of employment coverage to adjust their policies and practices to meet ADA requirements will be far less likely to experience serious legal problems. In drafting the ADA, Congress relied entirely on the text of the Rehabilitation Act of 1973 and its implementing regulations. There is already a broad set of laws interpreting the requirements of that law, which employers can turn to for advice about their obligations under the ADA. The Equal Employment Opportunity Commission, which has issued regulations implementing the employment provisions of Title I of the ADA, published a technical assistance manual with advice on how to comply with the law and will provide further assistance to help employers to comply with the requirements of the ADA. Equal employment opportunity for people with disabilities will be achieved more quickly and effectively through widespread voluntary compliance with the law than through lawsuits to enforce it.
Section 504 Frequently Ask Questions
Section 504 of the Rehabilitation Act of 1973 is a federal law, codified at 29 U.S.C. § 794, that prohibits discrimination on the basis of disability in federally-assisted programs or activities. Specifically, Section 504 states: No otherwise qualified individual with a disability in the United States. . .shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program, service or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. This means that Section 504 prohibits discrimination on the basis of disability in any program or activity that receives financial assistance from any federal agency, including HUD as well as in programs conducted by federal agencies including HUD.
Yes. HUD’s regulations for Section 504 that apply to federally-assisted programs or activities may be found in the Code of Federal Regulations at 24 C.F.R. part 8. There are also regulations that govern Section 504 in programs conducted by HUD which may be found at 24 C.F.R. part 9, however, this webpage focuses on Section 504’s requirements for federally-assisted programs and activities.
Persons with disabilities, persons associated with persons with disabilities, and other persons engaged in certain protected activities under the law.
An individual with a disability is any person who has a physical or mental impairment that substantially limits one or more major life activities. The term physical or mental impairment may include, but is not limited to, conditions such as visual or hearing impairment, mobility impairment, HIV infection, developmental disabilities, drug addiction, or mental illness. In general, the definition of “person with disabilities” does not include current users of illegal controlled substances. However, individuals would be protected under Section 504 (as well as the ADA) if a purpose of the specific program or activity is to provide health or rehabilitation services to such individuals.
The term major life activity may include, for example, seeing, hearing, walking, breathing, performing manual tasks, caring for one’s self, learning, speaking, or working. This list is not exhaustive. Section 504 also protects persons who have a record of such impairment, or are regarded as having such an impairment. For more information, visit Disability Overview.
The Section 504 regulations define “subrecipient” as any State or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution organization, or other entity or any person to which federal financial assistance is extended for any program or activity directly or through another subrecipient, including any successor, assignee, or transferee of a subrecipient, but excluding the ultimate beneficiary of the assistance. 24 C.F.R. § 8.3. Thus, a HUD funded public housing agency, or a HUD funded non-profit developer of low income housing is a subrecipient of federal financial assistance and is subject to Section 504’s requirements. Therefore, a public housing agency is covered by Section 504, for example, in the operation of its Section 8 voucher program or activity. However, a private landlord who accepts Section 8 tenant-based vouchers in payment for rent from a low-income individual is not a subrecipient of federal financial assistance merely by virtue of receipt of such payments. Similarly, while a developer that receives Community Development Block Grant (CDBG) or HOME funds for the rehabilitation of an owner-occupied unit is a subrecipient for purposes of Section 504, a family that owns the unit is not a subrecipient because the family is the ultimate beneficiary of the funds.
Section 504 prohibits discrimination on the basis of disability in any program or activity that receives federal financial assistance. This means, for example, that persons with disabilities may not be denied the opportunity to participate in a program or activity because of their disability; may not be required to accept a different kind or lesser program or service than what is provided to others without disabilities, and may not be required to participate in separate programs and services from those available to persons without disabilities, even if separate programs and services exist. In general, with respect to housing, a housing provider may not deny or refuse to sell or rent to a person with a disability, and may not impose application or qualification criteria, rental fees or sales prices, and rental or sales terms or conditions that are different than those required of or provided to persons without disabilities. Housing providers may not require persons with disabilities to live only on certain floors, or in one section of the housing. Housing providers may not refuse to make repairs, and may not limit or deny someone with a disability access to recreational and other public and common use facilities, parking privileges, cleaning or janitorial services, or any services which are made available to other residents without disabilities. Additionally, persons with disabilities may not be denied the opportunity to serve on planning or advisory boards because of their disabilities.
Section 504 does not require that a person with a disability be accepted without regard to eligibility requirements or his or her ability to meet standard, nondiscriminatory tenant selection and screening criteria. Rather, Section 504 requires that a person with a disability be evaluated using the same objective criteria that are applied to persons without disabilities, provided such criteria are nondiscriminatory and subject to reasonable accommodations and the provision of appropriate auxiliary aids and services necessary to ensure effective communication. Applicants, with or without a disability, may be rejected if they have a record of adversely affecting others such as excessively disturbing neighbors, destroying property, or failing to pay their rent on time. However, under Section 504, the housing provider must make sound and reasonable judgments based on objective and reliable evidence (current conduct or a history of overt acts). Subjective fears, unsubstantiated rumors, speculation and generalized suspicion do not constitute objective information that an applicant cannot meet the terms of tenancy. Housing providers are also subject to reasonable accommodation requirements with respect to such policies and may be required to make exceptions based on the manifestations of some disabilities.
No. Section 504, and related laws like the Fair Housing Act and the ADA, make it unlawful for a housing provider to refuse to rent to a person simply because of a disability and how it manifests. Therefore, a housing provider may not refuse to rent to an otherwise eligible individual because of fears or concerns that may be based on myths or stereotypes about persons with mental disabilities. Even where a housing provider may impose legitimate safety criteria, housing providers are still required to provide reasonable accommodations.
No. An individual with a disability who uses a wheelchair is no more likely than anyone else to cause damage, beyond typical wear and tear, to a dwelling unit. However, if a person who uses a wheelchair does cause damage to a unit that is beyond normal wear and tear that may be caused by use of a wheelchair, that individual may be required to cover the cost of such damage out of a standard security deposit that is charged to everyone.
One of the basic tenets of Section 504 is that programs and services be conducted in the most integrated setting appropriate to the needs of the person with a disability. In terms of housing, this means that the housing provided to persons with disabilities is not separate or unnecessarily segregated from housing provided to individuals without disabilities. Integrated settings also enable individuals with disabilities to live independently with individuals without disabilities and without restrictive rules that limit their activities or impede their ability to interact with individuals without disabilities. Examples of integrated settings can include scattered-site apartments providing permanent supportive housing, tenant-based rental assistance that enables individuals with disabilities to lease housing in integrated developments, and apartments for individuals with various disabilities scattered throughout public and multifamily housing developments.
By contrast, segregated settings are occupied exclusively or primarily by individuals with disabilities. Segregated settings sometimes have qualities of an institutional nature, including, but not limited to, regimentation in daily activities, lack of privacy or autonomy, policies limiting visitors, limits on individuals’ ability to engage freely in community activities, and manage their own activities of daily living, or daytime activities primarily with other individuals with disabilities.
Some programs funded by HUD have express federal statutory authority to limit eligibility to individuals with disabilities. Examples include the Housing Opportunities for Persons With AIDS (HOPWA), Section 811 Supportive Housing for Persons with Disabilities, Section 202 housing developments for non-elderly persons with disabilities funded prior to 1991, certain McKinney-Vento homeless assistance programs, HUD-VASH vouchers, designated public housing under Section 7 of the Housing Act of 1937, and project-based voucher (PBV) assistance under Section 8(o)(13) of the Housing Act of 1973.
HUD’s regulations implementing Section 504 restrict when participation in a federally-assisted program or activity can be limited to individuals with disabilities or individuals with specific disabilities.
Program accessibility means that a program or activity, when viewed in its entirety, is readily accessible to and usable by persons with disabilities. The concept recognizes that there may be some limits to the degree to which existing housing programs can be made accessible. Thus, under the concept of program accessibility, in an existing housing program, not every single building must be accessible, or every single dwelling unit, but there must be sufficient accessibility so that persons with disabilities have an equal opportunity to participate in and benefit from the program. Individuals with disabilities must also have the same range of choices and amenities as those offered to others without disabilities. However, subrecipients must take steps to ensure that their programs and services are readily accessible to and usable by persons with disabilities to the maximum extent feasible, which means the subrecipient would be required to take all steps that provide the necessary access, but which would not constitute an undue financial and administrative burden, or require a fundamental alteration in the nature of the program. Meeting program accessibility obligations does not exempt subrecipients from meeting other requirements of the Section 504 regulations, particularly the broad nondiscrimination provisions, and the requirements that designated accessible dwelling units be dispersed throughout buildings and sites. Likewise, subrecipients whose programs involve new construction or alterations, must meet the Section 504 regulation’s requirements for those activities, as well as meeting other applicable requirements in the regulations, such as for dispersion of designated accessible units throughout buildings and sites.
HUD’s Section 504 regulations at 24 C.F.R. § 8.27 require subrecipients to adopt suitable means to assure that information on available accessible units reaches otherwise qualified individuals with disabilities who need the features of those units. The regulations also require reasonable nondiscriminatory steps to maximize the utilization of accessible units. Under this process, whenever a unit that meets the requirements of the Uniform Federal Accessibility Standards (UFAS) or HUD’s Deeming Notice for a person with a mobility disability becomes available for occupancy, a subrecipient shall first offer the unit to a qualified individual with disabilities currently residing in a non-accessible unit in the same project or comparable projects, under common control, who requires the accessible features. If there are no such persons currently residing in the subrecipient’s projects, the subrecipient shall then offer the unit to the next available qualified individual with disabilities on its waiting list, provided that the person requires the accessibility features of the unit. The subrecipient shall skip over applicants without disabilities on the waiting list to offer the unit to the next qualified individual who requires the unit’s accessibility features.
If no qualified applicant with disabilities requires the accessible features of a unit, and the subrecipient places a family where none of the family members have disabilities in that unit, the subrecipient may include language in the lease requiring this family to agree to move to a non-accessible unit, as soon as one becomes available that otherwise meets the family’s needs.
A reasonable accommodation is a change, adaptation, or modification to a policy, program, service, or workplace which will allow a qualified person with a disability to participate fully in a program, take advantage of a service, or perform a job. Reasonable accommodations may include, for example, those which may be necessary in order for the person with a disability to use and enjoy a dwelling, including public and common use spaces. Since persons with disabilities may have unique needs due to their disabilities, in some cases, simply treating persons with disabilities exactly the same as others may not ensure that they have an equal opportunity to use and enjoy a dwelling.
In order to show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the individual’s disability. As discussed in the next question and answer, what is reasonable must be determined on a case-by-case basis. However, experience has shown that the following examples are often reasonable accommodations.
A federally-assisted housing provider has a policy of not providing assigned parking spaces. A tenant with a mobility impairment, who has difficulty walking, is provided a reasonable accommodation by being given an assigned accessible parking space in front of the entrance to his unit.
A federally-assisted housing provider has a policy of requiring tenants to come to the rental office to pay their rent. A tenant with a mental disability, who is afraid to leave her unit, is provided a reasonable accommodation by being allowed to mail her rent payment.
A federally-assisted housing provider has a no pets policy. A tenant, who uses a wheelchair and has difficulty picking up items off the ground, is allowed to have an assistance animal that fetches things for her as a reasonable accommodation to her disability.
An older tenant has a stroke and begins to use a wheelchair. Her apartment has steps at the entrance and she needs a ramp to enter the unit. Her federally-assisted housing provider pays for the construction of a ramp as a reasonable accommodation to the tenant’s disability.
Whether a particular accommodation is reasonable depends on a variety of factors and must be decided on a case-by-case basis. The determination of whether a requested accommodation is reasonable depends on the answers to two questions. First, does the request impose an undue financial and administrative burden on the housing provider? Second, would making the accommodation require a fundamental alteration in the nature of the provider’s operations? If the answer to either question is yes, the requested accommodation is not reasonable. However, even where a housing provider is not obligated to provide a particular accommodation because the particular accommodation is not reasonable, the provider is still obligated to provide other requested accommodations or alternative accommodations to the one initially requested that do qualify as reasonable. For example:
As a result of a disability, a tenant is unable to open the dumpster provided by his housing provider for his trash. The tenant requests that the housing provider send a maintenance staff person to collect his trash from his apartment daily. Because the housing development is a small, low-budget operation and the maintenance staff are not on site daily, it may be an undue financial and administrative burden for the housing provider to provide daily trash service to the tenant and the housing provider may refuse to provide the requested accommodation. However, the housing provider is obligated to provide the tenant with a requested alternative accommodation – such as, for example, providing either an open trash can or placing a trash can that the tenant can open in an accessible location so that the tenant may dispose of his trash.
Section 504 requires that in making an accommodation, a federally-assisted housing provider will be required to bear costs which do not amount to an undue financial and administrative burden. In application, this means that a housing provider may be required to spend money to provide legally required reasonable accommodations. For example, a public housing agency receives a request to install the deadbolt lock on the front door of a unit higher up on the door from a resident whose child has autism. The request makes clear that the child can reach the deadbolt and may wander out of the unit and is not able to follow instructions not to leave the unit because of her autism. The public housing agency would be required to pay for the cost of installing a deadbolt higher up on the door.
An individual with a disability should request an accommodation as soon as it appears that the accommodation is needed. However, requests may be made at any time. For example, requests may be made when an individual is applying for housing, entering into a lease, or occupying housing. Individuals who develop a disability during their tenancy may request accommodations, even if they did not have a disability when they signed their leases.
Section 504 does not prescribe a uniform procedure for requesting a reasonable accommodation to be used with all housing providers. To request an accommodation, an individual need not mention Section 504 or use the phrase reasonable accommodation. In general, a tenant or prospective tenant should make clear to the housing provider that s/he is requesting that an exception, change, adjustment, or modification be made to a rule, policy, practice, service, building or dwelling unit because s/he has a disability. S/he should explain what type of accommodation is requested and explain the relationship between the requested accommodation and his or her disability. In order to facilitate the process and consideration of the request, tenants or prospective tenants may wish to check with a housing provider in advance to determine whether that housing provider has established any specific procedures regarding requests for reasonable accommodation. Although the Section 504 regulations do not require it, it is usually helpful that the request be made in writing, so there will be documentation that the request was actually made in the event of a later dispute.
No. Section 504 does not require that a housing provider adopt any formal procedures that an applicant for housing or a tenant must follow to request a reasonable accommodation. However, having such a procedure will probably aid both the individual in making the request and the housing provider in assessing it and responding to it in a timely fashion. However, an individual with a disability may request a reasonable accommodation at any time and is not required to follow specific procedures.
Sometimes. Such a housing provider is obligated to provide an accommodation if s/he is on notice of the request, the provider already has reason to believe the accommodation is necessary, or if the need for the accommodation is obvious. A person with a disability will be considered to have asked for an accommodation if s/he indicates that a change or exception to a policy, practice, or procedure or a modification would assist him or her in making more effective use of his or her housing, even if the words reasonable accommodation are not used as part of the request. Sometimes the circumstances will dictate the need for accommodation.
If a housing provider delays responding to a request for an accommodation, after a reasonable amount of time, that delay may be construed as a failure to provide a reasonable accommodation. A tenant or applicant may choose to seek legal assistance or file a complaint with HUD.
Yes. Housing providers may suggest an alternative accommodation, however, the applicant or tenant may reject it if s/he feels it does not meet his or her needs. The housing provider must grant the requested reasonable accommodation unless it constitutes an undue financial and administrative burden or fundamental alteration of the program. Housing providers and applicants or tenants should engage in an interactive process to determine the best approach to meeting the applicants’ or tenants’ disability-related need. When considering a reasonable accommodation request, the housing provider should give primary consideration to the accommodation requested by the tenant or applicant because the individual with a disability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective.
HUD’s Section 504 regulations require subrecipients to take appropriate steps to ensure effective communication with applicants, beneficiaries, and members of the public (24 C.F.R. § 8.6). This may include, but is not limited to, conducting outreach in a manner that will reach persons with disabilities, such as by working with State and local organizations that serve or represent persons with disabilities, and ensuring that information about their programs is disseminated in a manner that is accessible to persons with disabilities. For example, furnishing appropriate auxiliary aids and services, such as the use of interpreters, transcription or captioning services, accessible electronic materials and websites, and large print, Braille, and other alternate format materials may be necessary. These auxiliary aids and services can greatly increase the effectiveness of outreach and ongoing communication and provide persons with disabilities an equal opportunity to participate in, and enjoy the benefits of, a program or activity receiving federal financial assistance.
No. Under HUD’s Section 504 regulations, specifically at 24 C.F.R. § 8.6, the subrecipient must furnish appropriate auxiliary aids and services where necessary to afford persons with disabilities an equal opportunity to participate in, and enjoy the benefits of, a program or activity receiving federal financial assistance. However, a subrecipient is not required to provide individually prescribed devices, readers for personal use or study (as opposed to interaction and participation in the program or activity), or other devices of a personal nature. Subrecipients are also not required to take any action that would result in a fundamental alteration in the nature of the program or activity or in undue administrative and financial burdens.
Under HUD’s Section 504 regulations, the subrecipient must furnish appropriate auxiliary aids and services where necessary to afford persons with disabilities an equal opportunity to participate in, and enjoy the benefits of, a program or activity receiving federal financial assistance, which includes the provision of interpreters, as necessary. Additionally, ADA’s requirements for effective communication limit when a housing provider may require an applicant or tenant to furnish their own interpreter, such as a companion or child, to only two situations: (1) in an emergency involving an imminent threat to the safety or welfare of an individual or the public; and (2) in other, non-emergency situations an adult accompanying someone who uses sign language may be relied upon to interpret or facilitate communication when a) the individual requests this, b) the accompanying adult agrees, and c) reliance on the accompanying adult is appropriate under the circumstances. This does not apply to minor children. Additional information on the ADA’s effective communication requirements is available here.
HUD’s Section 504 regulations define an accessible dwelling unit as a unit that is located on an accessible route and can be approached, entered, and used by individuals with physical disabilities. A unit that is on an accessible route and is adaptable and otherwise in compliance with the standards set forth in 24 C.F.R § 8.32 is accessible. In addition, the Section 504 regulations impose specific accessibility requirements for new construction and alteration of housing and non-housing facilities in HUD assisted programs. Section 8.32 of the regulations states that compliance with the appropriate technical criteria in the Uniform Federal Accessibility Standards (UFAS) or HUD’s Deeming Notice, or a standard that is equivalent to or stricter than the UFAS, is an acceptable means of meeting the technical accessibility requirements in Sections 8.21, 8.22, 8.23 and 8.25 of the Section 504 regulations. However, most units are covered by multiple federal accessibility laws and multiple federal accessibility standards. Compliance with all applicable accessibility laws is necessary.
For a federally-assisted new construction housing project, Section 504 requires 5% of the dwelling units, or at least one unit, whichever is greater, to be accessible for persons with mobility disabilities. An additional 2% of the dwelling units, or at least one unit, whichever is greater, must be accessible for persons with hearing or visual disabilities. An accessible dwelling unit is described in the Q&A above. The project must also meet all Section 504 requirements in HUD’s implementing regulation, such as, requirements regarding dispersal and utilization of accessible housing units.
If a new construction project has four or more dwelling units and is built for first occupancy after March 13, 1991, it is also subject to the accessibility and adaptability requirements of the Fair Housing Act, regardless of whether it receives federal financial assistance. The Fair Housing Act’s accessibility requirements are not as strict as those for Section 504 and the UFAS; however, the Fair Housing Act’s accessibility requirements apply to a broader number of dwelling units. Under the Fair Housing Act, if the building has an elevator, generally all of the dwelling units must meet the Fair Housing Act’s design and construction requirements; if there is no elevator, generally all of the ground floor dwelling units must meet the Fair Housing Act’s requirements. A unit that meets the Fair Housing Act’s accessibility requirements will be one that does not have as great a degree of accessibility as a UFAS-complying unit, but is one that may be easily adapted to be fully accessible without significant costs and the need to do significant structural modifications.
Under Section 504, alterations are substantial if they are undertaken to a project that has 15 or more units and the cost of the alterations is 75% or more of the replacement cost of the completed facility. (See 24 C.F.R. § 8.23(a)). The new construction provisions of 24 C.F.R. § 8.22 apply. Section 8.22 requires that a minimum of 5% of the dwelling units, or at least one unit, whichever is greater, shall be made accessible to persons with mobility disabilities and an additional 2% of the dwelling units, or at least one unit, whichever is greater, shall be made accessible to persons with hearing or visual disabilities.
If the project involves fewer than 15 units or the cost of alterations is less than 75% of the replacement cost of the completed facility and the subrecipient has not made 5% of its units in the development accessible to and usable by individuals with disabilities, then the requirements of 24 C.F.R. § 8.23(b) – Other Alterations apply. Under this section, alterations to dwelling units shall, to the maximum extent feasible, be made readily accessible to and usable by individuals with disabilities. If alterations to single elements or spaces of a dwelling unit, when considered together, amount to an alteration of a dwelling unit, the entire unit shall be made accessible. Alteration of an entire unit is considered to be when at least all of the following individual elements are replaced:
• renovation of whole kitchens, or at least replacement of kitchen cabinets; and
• renovation of the bathroom, if at least bathtub or shower is replaced or added, or a toilet and flooring is replaces; and
• replacement of entrance door jambs.
When the entire unit is not being altered, 100% of the single elements being altered must be made accessible until 5% of the units in the development are accessible. However, the Department strongly encourages a recipient to make 5% of the units in a development readily accessible to and usable by individuals with mobility disabilities, since that will avoid the necessity of making every element altered accessible, which often may result in having partially accessible units which may be of little or no value for persons with mobility impairments. It is also more likely that the cost of making 5% of the units accessible up front will be less than making each and every element altered accessible. Alterations must meet the applicable sections of the UFAS which govern alterations.
Mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of individuals with physical disabilities are not required to be made accessible in projects undergoing either substantial or other alterations. (see 24 C.F.R. § 8.32 (6)).
Federally-Assisted Non-Housing Facilities
All of Section 504’s nondiscrimination, program accessibility, and reasonable accommodation requirements that apply to housing facilities and programs apply equally to the operation of non-housing facilities or programs. (24 C.F.R. § 8.21)
New non-housing facilities constructed by recipients of federal financial assistance must be designed and constructed to be readily accessible to and usable by persons with disabilities. Alterations to existing facilities must, to the maximum extent feasible, be made accessible to ensure that such facilities are readily accessible to and usable by persons with disabilities. (24 C.F.R. § 8.21(a) and (b)). In addition, each existing non-housing program or facility must be operated so that, when viewed in its entirety, the program or activity is readily accessible to and usable by persons with disabilities. (24 C.F.R. § 8.21(c)). For example, a newly constructed day-care center that is provided for use by residents of a housing project, must meet the design and construction requirements of the Uniform Federal Accessibility Standards (UFAS) or HUD’s Deeming Notice. In addition, once the facility is completed, it would, of course, have to be operated in a non-discriminatory manner. The ADA is also likely to apply to the facility and require compliance with the 2010 ADA Standards.