Company Wins Disability Accommodation Case

In a recently decided case (Mundy v. Pro-Thro Enterprises, 192 Cal.App.4th Supp. 1 (2011)), Thomas Mundy, who is confined to a wheelchair, claimed violation of disability-related laws because he could not see himself in the restroom mirror at a car wash he patronized.

The court of appeal upheld the lower court’s dismissal of the case, finding that Mundy failed to prove that he suffered any actual injury, embarrassment, humiliation or discomfort as a result of the inability to use the restroom mirror.

The requirement to prove actual injury is found in statutes that were effective January 1, 2009. These amendments to the law provide equal access for the disabled and protection for businesses from litigation abuse.*

Mundy admitted that he is unemployed, yet earned income of more than $100,000 in 2009 from disability litigation. His "job" is to visit businesses, look for violations of state and federal disability access laws and file lawsuits against those businesses.

Mundy appealed the introduction at trial of his earnings from disability-related lawsuits, but the appeal was dismissed because he failed to properly raise the issue at trial. The court added that even if the evidence was inadmissible, Mundy could not show the required actual injury, and the admissibility of the evidence was moot. The court also ordered Mundy to pay the company its costs for the appeal.

The court noted that Mundy did not bring the problem with the height of the restroom mirror to the company's attention on the day he visited the car wash. After Mundy’s complaint was filed, the company installed a full-length mirror in the restroom.

Susan Kemp, CalChamber Senior Employment Law Counsel

*CalChamber members get exclusive access to HRCalifornia's Law Library, which includes a detailed section on accessibility laws and employer obligations. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

Panel Discussion on Service Animals

The State Board of Guide Dogs for the Blind will host a panel discussion on the service animal regulation changes in the Americans with Disabilities Act (ADA) set to take effect in March 2011.

The informational event allows business owners who serve the public to ask questions on the new rules ("emotional support" animals will not be considered service animals), and rights and responsibilities for businesses in accommodating service animals (which will now be limited to dogs and, in some cases, miniature horses).*

A comparison of the new federal rules to state service animal access laws also will be discussed. The panel discussion will take place on February 23 from 9 a.m. to noon at the Department of Consumer Affairs on North Market Blvd., Sacramento. Panelists from the U.S. Department of Justice and Disability Rights California will answer questions after the discussion.

A live webcast of the event also will be available at www.dca.ca.gov.  

Courtesy of Alert, from CalChamber

* CalChamber members can learn more about issues related to accessibility laws and persons with disabilities from the Accessibility section of HRCalifornia's Law Library. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.  

Revised ADA Regulations--Wheelchairs, Segways and Service Dogs, Oh My!

Yesterday's post discussed the impact of the new regulations relating to the Americans With Disabilities Act (ADA) on design standards and architectural changes. Today's post will discuss the new regulations in relation to mobility devices and service animals.

Mobility Devices

The new regulations clarify businesses’ obligations to accommodate mobility devices such as Segways and wheelchairs.

• Wheelchairs: you must permit them in all areas open to pedestrian use
• Other power-driven mobility devices (such as Segways): you must permit them unless you can demonstrate that their use would fundamentally alter your programs, services or activities, or create a direct threat or safety hazard.

Service Animals

Previous regulations did not specify what type of animal could be a service animal. The new regulations define service animal as a dog individually trained to work or perform tasks that mitigate the effects of a disability, such as a dog that picks up dropped items for a person in a wheelchair In addition, trained miniature horses may be used as service animals, subject to certain limitations.

You should never ask a person with disability who enters your business with a service dog about the nature of his or her disability. The new regulations do cover persons with mental disabilities but not persons using the dogs purely for emotional support. So, if a person doesn't look disabled to you and walks in with a dog, you may only ask "Is that a service animal?" You should not ask, "What is your disability?" You are not entitled to know the person’s medical condition.

Be aware that California law is broader than the federal regulations and allows service animals in training to enter public establishments with a qualified trainer, regardless of whether that person has a disability.

For detailed information on accessibility issues, CalChamber members can visit HRCalifornia's Law Library. Not a member? Sign up for a free 15-day trial.

Important Things You Should Know About the Revised ADA Regulations

It’s not too early to start planning for your responsibilities under the new rules related to the Americans with Disabilities Act (ADA). These new rules take effect on March 15, 2011. See our September 17th blog for an introduction to the amended regulations. Today, we’ll provide a bit more detail on the ADA Design Standards. Tomorrow's post will discuss mobility devices and service animals.

The new rules related to ADA design standards require that:

• New construction and alterations to existing structures must comply with the 1991 ADA design standards only if the triggering event occurs before September 15, 2010.
• If the triggering event occurs on or after September 15, 2010, but before March 15, 2011, new construction or alterations can comply with either the 1991 standards or the revised 2010 standards.
• Any new construction or alterations performed on or after March 15, 2012 must comply with the 2010 standards

Triggering Event

The regulations define "triggering event" in two ways:

1. If a permit is required, then the triggering event is the date of the last application for the building permit (or permit extension).
2. If no permit is required, then the triggering event is the start of physical construction. Groundbreaking doesn't count, but re-grading or laying a foundation does count.

Businesses that currently comply with the 1991 standards and perform no alterations on or after March 15, 2011, will not need to make any changes to comply with the revised standards.

Architectural Changes

The revised regulations include changes to physical access requirements that would affect areas such as restrooms. For example, the old regulations required that a restroom be configured with a "front" method of allowing a person to transfer from a wheelchair to a toilet. A single-user room or stall must now must provide clearance for both a forward and a parallel approach. The in-swinging doors of single use toilet or bathing rooms may swing into the clearance around any fixture if clear floor space is provided within the toilet room beyond the door's arc.

The reach range requirements also changed. For example, the new regulations provide that the side reach range must now be no higher than 48 inches (instead of 54 inches) and no lower than 15 inches (instead of 9 inches). Imagine a person in a wheelchair making a parallel approach to a dispenser as opposed to rolling forward directly to the dispenser. The person must reach out to his/her side to use the dispenser, and the new regulations change where a dispenser can be located.

CalChamber members can visit HRCalifornia's Law Library for detailed information on accessibility issues. Not a member? Sign up for a free 15-day trial. 

Final ADA Regulations Published

On September 15, 2010, the official text of amendments to Department of Justice regulations on the Americans with Disabilities Act (ADA) was published in the Federal Register. The new regulations amend DOJ regulations on:
•    Nondiscrimination on the basis of disability in state and local government services (Title II);
•    Nondiscrimination on the basis of disability by public accommodations and in commercial facilities (Title III)

The new rules take effect beginning March 15, 2011. Employers should make note that compliance with the 2010 Standards for Accessible Design is permitted as of September 15, 2010, but not required until March 15, 2012. The Department of Justice (DOJ) has prepared fact sheets explaining the major changes to the ADA regulations.

Fact Sheet: Title II 
Fact Sheet: Title III
Fact Sheet: Adoption of the 2010 Standards for Accessible Design

A brief summary of some revisions:

• Revised ADA Design Standards: The standards were brought in line with the federal standards implementing the Architectural Barriers Act and with the private sector model codes adopted by most states.
• Service animals: Service animals may only be dogs and, in some cases, miniature horses. No other animals will qualify as service animals under the ADA pursuant to the revisions.
• Mobility devices: The rule distinguishes wheelchairs from other mobility devices, such as Segways and allows both to be used, subject to slightly different accessibility standards.

 

Visit the Disabilities Section of HRCalifornia's Law Library for detailed information related to disabilities and accessibility standards relevant to California employers.