ADA compliance

William D. Goren is deeply passionate about the Americans With Disabilities Act.

“I am congenitally deaf with a bilateral sensorineural hearing loss of 65-100db plus, I have always functioned in the hearing world thanks to lip reading and extremely powerful hearing aids,” he says. “For reasons unrelated to my deafness, I also use voice dictation technology.”

While in college, William worked for the Illinois Department of Human Rights focusing on ยง 504 of the Rehabilitation Act, the law which the ADA is based on. After graduating from Vassar College, he got a Juris Doctor degree from the University of San Diego, going on to working for a Chicago firm doing plaintiff complex civil litigation.

After three years, he changed directions and got a Master of Laws degree in Health Law from Depaul University (he believes he might have been the first in the country to earn that degree).

Around the same time ADA was signed into law, he was working as General Counsel to Harris County Mental Health and Mental Retardation Authority (an independent governmental entity in Texas responsible for acting as the safety net for persons with what is now called intellectual disabilities, substance abuse, and mental illness).

“Upon reading the ADA, I realized that it was based on the Rehabilitation Act and also that the principles of reasonable accommodations and reasonable modifications were very much the way that I live my life. So, I dived in to ADA and have never looked back.”

In addition to practicing law, William has trained paralegals and worked as an ADA Instructional Coordinator at South Suburban College in Chicago.

Today, William is the principal/owner of William D. Goren, J.D., LL.M., LLC, in Decatur, Georgia. The fifth edition of his book, Understanding the ADA, is due to be published in 2017.

He recently checked in with us to offer his (extensive) insight on ADA. Here’s what he had to say:

How important should ADA compliance to a business or organization?

Very. In addition to the substantial amount of money, discussed below, for failing to comply, failing to comply also unnecessarily limits your market and is bad public relations.

What are the risks to a business for being out of compliance?

Failure to comply will cost quite a bit of money, limit your marketplace and result in bad publicity.

Jon Hyman, of Meyers, Roman, Friedberg & Lewis, who has a great blog, said two years ago that defending a discrimination or other employment lawsuit through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment, which from my reading of the case law is happening more and more all the time with respect to ADA cases, Jon says that the employer can expect to spend a total of $175,000 to $250,000 to take a case to a jury verdict at trial.

Recently, a study by the insurance carrier Hiscox came out and showed of 446 closed claims reported by small-to-medium-sized enterprises (SMEs) with fewer than 500 employees, 19 percent of employment charges resulted in defense and settlement costs averaging a total of $125,000.

I have no reason to believe that the litigation costs for defending a title III of the ADA (places of public accommodations), would not be similar.

What aspects of ADA compliance do you think are most misunderstood or misinterpreted by organizations?

1. Essential functions of the job;
2. Temporary disabilities;
3. Interactive process;
4. Logistical undue burden/fundamental alteration;
5. Web accessibility compliance;
6. The difference between service dogs and therapy dogs (a major issue in retail, restaurant and hospitality industries).

What are the most common mistakes you’ve observed organizations making when it comes to ADA compliance?

1. The significance of the difference between essential and marginal functions of the job.
2. Essential functions of the job confused with the tasks necessary to carry out the job.
3. Essential functions of the job confused with major life activities.
4. Temporary disabilities may be a disability under the ADA.
5. Websites are not accessible to all persons with disabilities.
6. Website might be accessible to persons with disabilities but not to persons with multiple disabilities.
7. Failure to engage in the interactive process.
8. Inadequate training or lack of training on ADA compliance.
9. The rules for current users of alcohol and drugs are not the same.
10. The Family and Medical Leave Act overlaps with the ADA but the rules are different and those differences can be critical.
11. Automatically assuming that compensatory and punitive damages are available for ADA retaliation claims.
12. Taking the easy way out (letting all dogs in), with respect to service dogs v. therapy dogs (non-employment).

What advice do you find yourself repeating to organizations over and over again with regard to ADA compliance?

1. Essential functions of the job are whatever is fundamental to carrying out the job’s purpose.
2. Do not confuse essential functions of the job with tasks or major life activities.
3. Have you engaged in the interactive process and have you called the Job Accommodation Network?
4. Are indemnity agreements in place when it comes to architectural compliance or the purchase of software? Keep in mind such agreements may or may not be enforceable.
5. Has your website been audited for ADA compliance for all persons with disabilities?

What are the most important updates to the ADA that organizations should be aware of today?

1. The amendments to the ADA (ADAAA)
2. Case law and regulations are constantly evolving

Where are the most common places that the ADA and employee health benefits intersect?

1. Wellness plans
2. Worker’s Compensation
3. Short and long-term disability policies

What seems to surprise employers the most about ADA as it applies to health benefits?

1. The complete uncertainty between the EEOC proposed rules regarding wellness plans and the safe harbors contained within the ADA.
2. The uncertain viability of the safe harbor at all in light of the Affordable Care Act. See this blog entry of mine.
3. That persons with disabilities can be so alarmed about wellness plans.

Connect with William on LinkedIn.

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