In recent weeks, the League has seen an upsurge of interest among municipal officials in the Americans With Disabilities Act (ADA). Misconceptions about ADA abound, and since the law applies to every municipality in Illinois, it is imperative that a municipal official know what the ADA is, and more importantly, what it IS NOT.

This brief article, while not constituting legal advice, focuses upon some of the questions most frequently asked by municipal officials. It may help clear up some concerns about ADA, and encourage those with possible ADA "violations" to become familiar with ADA and its strong potential to spawn litigation.

• What is the ADA? What does a local official need to read?

Several federal agencies are responsible for carrying out the mandate of ADA, and they do so by publishing rules. These rules are the interpretation of the law which will give you more insight into how ADA will affect your municipality. ADA rules were published in the Federal Register released on July 26, 1991.

• Are local officials responsible for enforcing the ADA?

No. Responsibility for enforcement of the ADA lies with two primary federal agencies, the Department Of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC). Local governments have no responsibility for enforcing the ADA, or inspecting buildings for ADA compliance (other than those they own.)

Prosecution for a violation of the ADA will be brought either through legal action taken by the responsible federal agencies when a violation is reported to them, or through a private action filed by an individual or a class. Federal inspectors will not conduct investigations for ADA violations.

• Is the ADA a preference hiring law?

No — at least it is not specifically intended to be. ADA, in its interpretive guidance for the employment and hiring regulations found in the Federal Register rules for Title I, states that

"...The ADA seeks to ensure access to equal employment based on merit. It does not guarantee equal results, establish quotas, or require preferences favoring individuals with disabilities over those without disabilities." (Fed. Reg., 7/26/91, p. 35739)

However, Section 1630.9(b) states that

"an employer cannot prefer or select a qualified individual without a disability over an equally qualified individual with a disability simply because the individual with a disability will require a reasonable accommodation." (Fed. Reg., 7/26/91, p. 35749)

This could mean that an employer must hire disabled persons who are equally qualified for jobs over those who are not disabled if the disabled person can perform the essential job duties with a "reasonable accommodation." This requirement may cause persons with disabilities who require a "reasonable accommodation" to be given preference over persons without disabilities.

• Can an employee be required to have a medical examination before they are hired?

Yes. However, section 1630.14 of ADA Title I rules states that a medical examination or a medical inquiry about a disability may be made only after a conditional offer of employment has been tendered. The medical exam must be given to all job applicants, and if a person is denied the position because the exam revealed a disability, you must show that there was a business necessity for denying employment, and that no reasonable accommodation could have been provided to remedy the situation.

This may be especially important in hiring public safety personnel who must meet strict physical criteria to safely perform their duties. ADA's intention is NOT to require that you hire persons with disabilities who could not safely perform public safety positions. Its intention is to assure that those persons with a disability who are qualified to perform the essential job functions with or without a "reasonable accommodation" are not discriminated against on the basis of their disability only.

• Is it true that ADA will require cities to buy thousands of dollars of equipment to accommodate one person with a disability?

It may be. Many municipal officials have expressed the concern that they will be required under ADA to purchase expensive devices and other equipment to

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accommodate a person who claims they are able to perform the essential job functions, but with what the person with a disability considers to be a "reasonable" accommodation. However, what is "reasonable?" The federal rules stipulate that what is "reasonable" should be decided as the situation warrants, on a case-by-case basis.

Due to the vagueness of ADA, many local officials are concerned that they have no defense from ADA if they cannot afford an accommodation which an individual with a disability considers to be "reasonable." Fortunately, there is an "undue hardship" defense that the employer can assert. However, EEOC has decided that the factors to be considered when determining what is an "undue hardship" include the following:

• the nature and net cost of the accommodation;
• the overall financial resources of the facility;
• the overall financial resources and size of the covered entity;
• the type of operation or operations of the covered entity, and
• the impact of the accommodation upon the operation of the facility;
(Fed. Reg., 7/26/91, p. 35736.)

• Do all municipally owned buildings need to be accessible?

Not necessarily. A careful reading of Section 35.150 of Title II Subtitle A rules promulgated for the ADA by the Department of Justice reveals that:

"A public entity shall operate each service, program or activity so that the service, program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." (Fed. Reg., 7/26/91, p. 35720.)

However, as we read further in Section 35.150, we discover that

"This paragraph does not — 1) Necessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities; 2) Require a public entity to take any action that would threaten or destroy the historic significance of a historic property; or 3) Require a public entity to take any action that it can demonstrate would result in a fundamental altera-

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tion in the nature of a service, program or activity, or in undue financial and administrative burdens." (Fed. Reg., 7/26/91, p. 35720.)

This is one very important place where the ADA is open to judicial interpretation. A court is the only place where exactly what an "undue financial and administrative burden" or a "fundamental alteration in the nature of a service, program, or activity" can be determined.

An inaccessible non-public access building such as a wastewater treatment plant may need to be made accessible only when a municipality hires a person with a disability to work in the facility or if there is a place at the site that residents must access to pay bills, for example. (There have been situations where a municipality dropped its public tours of the city water plant so as not to have to modify it under ADA!)

• Is it true that ADA requires curb cuts to be placed in EVERY corner of the city?

Section 35.150 d(2) of the Title II Subtitle A rules regarding state and local government services states:

"If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other places." [emphasis added] (Fed. Reg., 7/26/91, p. 35720)

This priority list alerts the local official to the "common sense" the ADA asks for in this situation, and shows the uncertainty you will encounter in the rules. The Department of Justice may consider a municipality responsible for every corner in the city having a curb cut by 1995, but fiscal reality may dictate that the most important accessible places in the city be provided with such structures first, and other areas be looked at over the long term. Bear in mind that this is an opinion, not what the law says specifically.

• When do local officials have to comply with ADA? What should I do to get started?

If you have not already begun to familiarize yourself with ADA, and have not started a "self-evaluation" of your city, regardless of your size, you should do so right away. To help with this process, it is a good idea for cities with less than 50 employees, and mandatory for larger cities to appoint an ADA coordinator.

A municipality with 50 or more employees must have had, by July 26, 1992, a transition plan completed

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(and in document form) that outlines the steps the municipality will need to make to comply with ADA. A complete self-evaluation of all programs, policies and procedures must be completed by January 26, 1993. If this self-evaluation reveals any structural changes that must be made to comply with the law (such as curb ramps or elevators), they must be completed no later than January 26, 1995. All other modifications in policy, procedures, or administration must be completed as soon as possible, but no later than January 26, 1993.

It is highly recommended that cities with less than 50 employees also follow the same procedures to ensure ADA compliance. Remember, anyone who sues and wins can get attorney's fees, compensatory damages, and possibly a court order mandating that your municipality comply with ADA.

ADA is serious legislation that affects all cities in Illinois. Legal counsel is absolutely necessary should you have questions. A guide to ADA compliance prepared by the National League of Cities is available through the League for $30. Please contact Jim McCurdy (217/525-1220) to order this material or if you have any questions. •

NOTICE

The Illinois Environmental Protection Agency (IEPA) is proposing regulations regarding procedures for white goods collection grants required by Section 22.28 of the Environmental Protection Act (Ill. Rev. Stat. 1989, ch. 111 1/2, par. 1022.28, as amended by P.A. 87-727, effective September 23, 1991). As required by the Act, these proposed regulations include the procedures for units of local government to obtain grants to plan for and implement programs to collect, transport and manage white goods. White goods include all discarded refrigerators, ranges, water heaters, freezers, air conditioners, humidifiers and other similar domestic and commercial large appliances. Auditing and recordkeeping requirements are included. The IEPA sent the proposed regulations to the Secretary of State for publication in the Illinois Register in late June, 1992. The proposed rules should be published in July, 1992. The Illinois Register publication will include the text of the proposed regulations as well as the time and manner of submission of written comments to the IEPA. If you have any questions, please contact David Walters, Manager of the Solid Waste Reduction Unit, IEPA, at (217) 785-8604. •

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