AUG 9 1993

The Honorable John Breaux United States Senator 705 Jefferson Street Room 103 Federal Building Lafayette, Louisiana 70501 Dear Senator Breaux: This is in response to your letter requesting information for your constituent, Mr. Paul A. Fontana, about the Americans with Disabilities Act (ADA). The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist your constituent in understanding the ADA's requirements. However, it does not constitute a legal interpretation or legal advice, and it is not binding on the Department. Much of your constituent's letter relates to discrimination in employment practices covered by title I of the ADA, which is enforced by the Equal Employment Opportunity Commission. We assume that the inquiry has also been referred to that agency. However, Mr. Fontana's question about the accessibility of an apartment complex's swimming pool for a woman with a head injury does implicate title III of the Act. Mr. Fontana states that the woman has asked the apartment complex to make reasonable accommodations to make the swimming pool accessible to her, but that a manager of the complex told her that she is responsible for making the pool accessible. The ADA does not apply to strictly residential facilities. If the housing complex is strictly residential and the pool is intended for the exclusive use of the residents and their guests, the pool is considered an amenity of the residential complex. As such, it would not be considered a place of public accommodation subject to the ADA. Nonetheless, the apartment complex and the swimming pool would be subject to the requirements of the Fair Housing Act, which prohibits discrimination on the basis of

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01-02494 -2disability and is enforced by the Department of Housing and Urban Development. Under that Act, a landlord is generally required to permit reasonable modifications to existing facilities at the tenant's expense. If the swimming pool is made available to the general public for rental or use, or if the apartment complex is a social service center establishment, as are some retirement communities, it would be covered by the ADA. Once covered by the ADA, the owners or operators of the pool would be required to remove architectural barriers to accessibility if their removal is readily achievable, that is, if they can be removed without much difficulty or expense. I hope this information is useful to your constituent in understanding the apartment complex's obligations. Sincerely,

James P. Turner Acting Assistant Attorney General Civil Rights Division

01-02495 Center for Work Rehabilitation. Inc. MAY 28, 1993

Senator John Breaux 705 Jefferson Room 103 Lafayette, LA 70501 Dear Senator Breaux, I am writing to request your assistance in obtaining answers from the Department of Justice and the Equal Employment Opportunity Commission on some matters relating to the Americans With Disabilities Act. I have attempted to obtain answers through the New Orleans and Washington, D.C. offices of each department, to no avail. When calling the Washington, D.C. phone number for either the Department of Justice or The Equal Employment Opportunity Center you do not get to speak to a person but rather to a never ending voice mail. The New Orleans field offices have not given any assistance I can use, but rather have referred me to the technical assistance manuals - which I have already tried to use to no avail. I am a consultant to a very large private company as well as a municipality that have the same question in regards to complying with the employment requirements of the ADA. This is the scenario: * The company/city interviews and hires the employee. * All newly hired employees are sent to a physician for a back x-ray. * If the x-ray is "normal" employee goes to work. * If the x-ray is "abnormal" the employee is sent for very specific essential function testing based on the job description. Only those employees testing "abnormal" on a back x-ray are given a post hiring assessment of their ability to perform the essential functions of the job.

My understanding from all courses I've attended on the ADA is that this practice is discriminatory because it treats the "abnormal back" employee as disabled and differently from the non-disabled. The "normal back" employee does not have to prove he/she can do the job only the "abnormal back" employee.

01-02496 Senator John Breaux May 28, 1993 Page Two

My first question is very straight forward. Can a company use a back x-ray and the resulting abnormal back classification to single out individuals for further testing to ensure they can perform the essential functions of the job when those with a 'normal back' x-ray do not have to prove they can do the job? My second question is: In this context, is the Post Hiring Assessment of an employee's ability to perform the essential functions of the job considered a medical test? Question number three: Is a functional capacity or work capacity assessment considered a medical test? My next question that falls under the employment aspects of the ADA is as follows: Scenario: * An injured worker, after recovering from a lumbar back fusion, reaches maximum medical improvement and the treating physician releases him to a medium work level. Six months to a year later the recovered worker applies for a job which is considered heavy (lifting up to 100 lbs. infrequently and 50 lbs. frequently). The recovered worker passes the initial screening and is hired by the new employer. Upon "conditional offer of employment" the worker is sent to the company physician for a physical. Upon review of the worker's previous medical history the physician learns of the worker's previous fusion. With no further testing to ascertain whether the worker can perform the essential function of the job, the physician

*

states the worker should not be allowed the job because of the heavy work it involves. The worker states he can perform the job safely but is not tested and is terminated: Question: Can an employer place restrictions or even terminate a worker based on previous work restrictions without testing whether or not a worker can perform the job? My question concerning the ADA and the Department of Justice involves a head injured adult and an apartment complex. I might further state there is no way this head injured person would be able to deal with and gain any useful information from the never ending voice mail system the Department of Justice is utilizing 01-02497 Senator John Breaux May 28, 1993 Page Three The woman has requested the apartment complex make reasonable accommodations to ensure the complex's swimming pool is accessible to her. One apartment manager told her this is her responsibility and not that of the apartment complex. Question: What is this woman's options and how does she get the apartment complex to comply with the ADA? I certainly appreciate any assistance your office can provide in getting answers especially those involving the EEOC and employment issues. These companies are attempting to comply, but we are not getting sufficient Answers from those making the rules. If I can provide additional insight or clarification to my questions and concerns please give me a call. I have a meeting scheduled for July 8, 1993 where these answers would be most helpful. I look forward to hearing from your office. Sincerely,

Paul A. Fontana PRESIDENT CENTER FOR WORK REHABILITATION, INC.

CENTER FOR FUNCTIONAL EXCELLENCE, INC. PAF:els 01-02498