Understanding the ADA

The Americans with Disabilities Act (ADA) is a federal civil rights law that protects people with disabilities from discrimination. While the ADA’s requirements are fairly straightforward, the complexity typically lies in applying the ADA in the gray areas when there’s no regulatory guidance on point. Since we, as camp professionals, are in the people business – with hundreds of campers and staff each summer – those gray areas are numerous and constantly changing.

The purpose of this article is to explain some of the key obligations and protections of the ADA that camps should keep top-of-mind when making decisions about campers and staff with disabilities. Since different Titles of the ADA apply to campers and staff – the ADA has distinct requirements for each group – this article is divided into two sections: we begin with key considerations for campers and then turn to key considerations for staff.

Our Obligations to Campers Under the ADA

Overview

Title III of the ADA prohibits discrimination against any camper with a disability. The ADA requires camps to provide reasonable modifications to campers with disabilities based on an individualized assessment of each camper, as long as the modifications do not fundamentally alter the nature of the camp program or create an undue burden for the camp.

Application

The requirements of Title III apply to “public accommodations,” which is a term that’s specifically defined in the law. For our purposes, it’s sufficient to say that most non-religious camps are considered public accommodations under the ADA.

“Religious entities” are exempt from the definition. This means that religious camps are not obligated to comply with the ADA as to their campers. However, religious camps should keep two important points in mind: First, they may be subject to ADA-style obligations under applicable state law, which may be broader than the ADA and encompass certain religious organizations. Second, religious camps are still bound by Title I of the ADA, which protects staff with disabilities. We discuss Title I in the next section of this article.

While another exemption could also apply to non-religious camps – “private clubs” aren’t bound by the ADA either – for purposes of this article, let’s assume that most non-religious camps are subject to ADA requirements.

Defining Disability

Under the ADA, “disability” is a legal term, and not exclusively a medical one. “Disability” is defined as “a physical or mental impairment that substantially limits one or more major life activities.” Thus, the ADA does not apply to every camper who requests a modification; it only applies to campers who have a “disability” as that term is defined in the law.

There is an important caveat here. The ADA also protects people who are “regarded as” having a disability. If a person has a physical or mental impairment that does not limit a major life activity, but a camp treats the person as if they do have a disability, then ADA protections apply. What might be an example of this?

The Department of Justice (DOJ) gives the following illustration: “A three-year old child born with a prominent facial disfigurement, has been refused admittance to a private day care program on the grounds that her presence in the program might upset the other children. [The child] is an individual with a physical impairment that substantially limits her major life activities only as the result of the attitudes of others toward her impairment.” ADA Title III Technical Assistance Manual. The child is covered by the ADA.

Eligibility Criteria

When it comes to policies and camper applications, a camp cannot impose eligibility criteria that “tend to screen out persons with disabilities,” unless the camp “can show that such requirements are necessary for the provision of [the camp’s services].” While this language is a bit vague, the Department of Justice (DOJ) illustrates in the Technical Assistance Manual with a couple notable examples:

1. “A cruise ship subject to the ADA discovers that an individual who uses a wheelchair has made a reservation for a cruise and plans to travel independently. The cruise line notifies the individual that she must bring a ‘traveling companion’ or her reservation will be canceled. Requiring a traveling companion as an eligibility criterion violates the ADA, unless the cruise line demonstrates that its policy is necessary for some compelling reason.”
   

2. “A committee reviews applications from physicians seeking ‘admitting privileges’ at a privately owned hospital. The hospital requires all applicants, no matter their specialty, to meet certain physical and mental health qualifications, because the hospital believes they will promote the safe and efficient delivery of medical care. The hospital must be able to show that the specific qualifications imposed are necessary.”

Policies Related to Safety Requirements

While camps have a general obligation to provide reasonable modifications to campers with disabilities, camps are allowed to “impose legitimate safety requirements” – provided that such requirements are based on “real risks” rather than “speculation, stereotypes, or generalizations about people with disabilities.” For example, “A wilderness tour company may require participants to meet a necessary level of swimming proficiency in order to participate in a rafting expedition.” ADA Title III Technical Assistance Manual

By contrast, consider this DOJ illustration of what’s not allowed: “The director of a county recreation program prohibits persons who use wheelchairs from participating in county-sponsored scuba diving classes because he believes that persons who use wheelchairs probably cannot swim well enough to participate. An unnecessary blanket exclusion of this nature would violate the ADA.” Since many people who use wheelchairs can safely participate in a swim program, a blanket exclusion would not be an acceptable safety requirement. ADA Resources and Camp Information.

Simply put, while bona fide safety requirements and other policies that are legitimately necessary for the provision of a camp’s services are allowed, policies that are overly broad and screen out people with disabilities violate the ADA. When considering safety issues, camps are typically required to make an individualized assessment of each camper grounded in medical knowledge and objective safety standards, analyzing the severity of the risk and the likelihood of harm. A vague conclusion that accommodating a child is “not safe” will not pass muster.

Unnecessary Disability-Related Inquiries

The ADA does not prohibit questions about disabilities in the application process, but we must pay close attention to why those questions are being asked. Disability-related questions can't serve to screen out campers with disabilities, but rather must be intended to help facilitate accommodations. While a particular family’s answers may mean their child doesn't attend camp, that shouldn't be the goal of the questions.

Likewise, camps can't make unnecessary inquiries into the existence of a disability. For example, if a camp requires a health form and questionnaire – which the vast majority of camps do – then each piece of information requested on the form must be required to identify any modification and/or ensure safe participation in camp activities. Again, the questionnaire cannot be used to screen out campers with disabilities.

Consider this DOJ illustration: “A municipal recreation department summer camp requires parents to fill out a questionnaire and to submit medical documentation regarding their children’s ability to participate in various camp activities. The questionnaire is acceptable, if the recreation department can demonstrate that each piece of information requested is needed to ensure safe participation in camp activities. The Department, however, may not use this information to screen out children with disabilities from admittance to the camp.” ADA Resources and Camp Information

Fundamental Alteration and Undue Burden

Recall that camps must provide reasonable modifications to campers with disabilities, unless a particular modification would fundamentally alter the camp program or pose an undue burden. Note, however, that even if a particular modification would fundamentally alter the program or pose an undue burden, the camp must still attempt to find a different modification that would address the camper’s needs.

Fundamental Alteration

A “fundamental alteration” is a modification that is so significant as to change the nature of the goods, services, or facilities provided. This is a high bar, and the DOJ often expects camps to make significant changes to achieve ADA compliance. To help determine whether a modification would be a fundamental alteration, a camp can distinguish how their program has always run from the program’s truly essential objectives and requirements. This process helps determine what is truly essential to the program and what can be modified without a fundamental alteration.

Undue Burden

An “undue burden” is somewhat-vaguely defined as a modification that would cause significant difficulty or expense if carried out. Factors that can be considered to determine if an accommodation would be an undue burden include the nature and cost of the accommodation, the organization’s financial resources, its number of employees, and geographic considerations (such as whether the camp is isolated and in a remote location). Undue burden can be a difficult standard for organizations to apply, and usually a camp must show that it tried quite hard to meet a specific camper’s needs. The trend in recent DOJ settlements shows a high bar to avoid accommodating a child’s needs due to undue burden. A link to a number of recent settlements appears below.

Right to Participate

It's important for camps to keep in mind that even if they can't provide a particular accommodation, they cannot deny a camper with a disability the right to participate in the camp's regular program. As the DOJ explains in the Technical Assistance Manual: "Individuals with disabilities are entitled to participate in regular programs, even if the [camp] could reasonably believe that they cannot benefit from the regular program."

The DOJ gives the example of a person in a wheelchair attending a group fitness class at a health club: "An individual who uses a wheelchair may not be excluded from an exercise class at a health club because he or she cannot do all of the exercises and derive the same result from the class as persons without disabilities." The person who uses a wheelchair has an ADA right to participate. By contrast, the DOJ explains that: "An individual who uses a wheelchair may be excluded from playing in a basketball league, if the recreation center can demonstrate that the exclusion is necessary for safe operation."

Simply put, a camp may not be able to provide a particular accommodation, but the camp cannot exclude a campers with a disability unless the exclusion is due to legitimate safety concerns or the camper would pose a direct threat to others. Let's not consider the direct threat concept.

Direct Threat

As just noted, camps are allowed to exclude a camper from their program if the camper would pose a "direct threat" to others. Consider the following example from the Department of Justice resource guide called Commonly Asked Questions about Child Care Centers and the ADA. While the guide focuses on child care centers, the same principles apply to camps. In question and answer format, the resource guide tells us the following:

Question: One of the children in my center hits and bites other children. His parents are now saying that I can't expel him because his bad behavior is due to a disability. What can I do?

Answer: The first thing the provider should do is try to work with the parents to see if there are reasonable ways of curbing the child’s bad behavior. He may need extra naps, "time out," or changes in his diet or medication. If reasonable efforts have been made and the child continues to bite and hit children or staff, he may be expelled from the program even if he has a disability. The ADA does not require providers to take any action that would pose a direct threat – a substantial risk of serious harm – to the health or safety of others. Centers should not make assumptions, however, about how a child with a disability is likely to behave based on their past experiences with other children with disabilities. Each situation must be considered individually.

Charging Parents for Special Services

Camps commonly ask if they can charge families for a particular modification. If a modification entails a significant expense, can the camp pass it along to the family? This question is especially well-addressed in the resource guide cited above:

Question: Can I charge the parents for special services provided to a child with a disability, provided that the charges are reasonable?

Answer: It depends. If the service is required by the ADA, you cannot impose a surcharge for it. It is only if you go beyond what is required by law that you can charge for those services. For instance, if a child requires complicated medical procedures that can only be done by licensed medical personnel, and the center does not normally have such personnel on staff, the center would not be required to provide the medical services under the ADA. If the center chooses to go beyond its legal obligation and provide the services, it may charge the parents or guardians accordingly. On the other hand, if a center is asked to do simple procedures that are required by the ADA – such as finger-prick blood glucose tests for children with diabetes – it cannot charge the parents extra for those services. . . .

So let's assume a parent informs you that their child needs a one-to-one aid to participate in your program. If providing such an aid would be an undue burden or fundamental alteration of your program, then you wouldn't be obligated to provide the aid under the ADA. In this case, you may charge parents for the aid. By contrast, you are not allowed to charge parents for minor modifications that are required by the ADA.

Making it Practical: Policy Language for Camps

Camps often ask about putting policies in place regarding their provisions of ADA accommodations. What language should they use in these policies? To answer this question, it’s instructive to look at DOJ settlement agreements with camps that violated various ADA requirements. Those agreements typically include specific accommodations language that is approved by the DOJ. For example, here’s some language from a DOJ Settlement Agreements with two different YMCAs:

• DOJ-Approved Language for Enrollment Form: “If your child has a disability, impairment or condition that requires medication or other accommodations, please inform the YMCA of your child’s needs before the program begins to ensure that the YMCA is prepared to address your child’s needs. Once a parent/guardian submits a modification request, Arlington-Mansfield Area YMCA will consider that request on a case-by-case basis and will attempt to accommodate your child within a reasonable amount of time.”

• DOJ-Required Policy in Settlement Agreement: The YMCA must “adopt and implement a policy stating that Arlington-Mansfield YMCA will make reasonable modifications for children with diabetes, upon request from the child’s parent or guardian, unless such a request amounts to a fundamental alteration of the program. Arlington-Mansfield Area YMCA will make individualized determinations based on the specific facts of each request and will not apply a general prohibition against providing particular types of reasonable modifications.”

• Sample Policy Language, Approved by DOJ: "In accordance with the requirements of Title III of the Americans with Disabilities Act of 1990, the West End YMCA will not discriminate against any individual on the basis of disability. The West End YMCA will make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford its services and facilities to individuals with disabilities, unless the modifications would fundamentally alter the nature of its services. The West End YMCA will not exclude any individual with a disability from the full and equal enjoyment of its services and facilities, unless the individual poses a direct threat to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services. The West End YMCA will not exclude any individual from the full and equal enjoyment of its services and facilities because of the individual’s association with a person with a disability."

While this is an example from one settlement agreement, you can see a number of DOJ settlement agreements here: ADA Resources and Camp Information. These agreements are highly instructive to camps that are drafting or reevaluating their ADA policies.

Final Note: State Law

The final point to keep in mind is that state law may have a broader definition of disability than the ADA. State law may also apply ADA-style requirements to religious organizations and impose additional obligations on camps. So you should check your state law before finalizing disability-related policies to confirm that the state doesn’t have stricter requirements than the ADA. Camps should always follow the strictest applicable law.

Our Obligations to Staff Under the ADA

Overview

Just as Title III of the ADA prohibits discrimination against campers with disabilities, Title I prohibits discrimination against job applicants and staff with disabilities. Title I’s protections and obligations apply to all aspects of the employment relationship, including the application process, promotion, hiring, training opportunities, separation, and compensation.

Title I requires camps to provide reasonable accommodations to qualified applicants and employees with disabilities, unless the camp can show that a particular accommodation would cause an undue hardship on the operation of its business, or the employee would pose a direct threat to the workplace that can’t be addressed with a reasonable accommodation.

Application

Title I of the ADA applies to all employers with 15 or more employees. Unlike the camper protections in Title III of the ADA, the employment protections in Title I apply to religious organizations. Similarly to Title III, the Title I requirements exempt private clubs but, for our purposes, let’s assume this exemption does not apply to most camps.

People with Disabilities Who Are Qualified for the Job

The ADA’s employment protections do not apply to every person who requests an accommodation, nor do they apply to every person who has a disability. Rather, Title I applies to applicants and employees with a disability who are qualified for the job. In other words, Title I imposes a two-part requirement for its protections to apply: first, the employee or applicant must have a disability, and second, the employee or applicant must be qualified for the job.

Definition of Disability

As discussed in the Camper section above, “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities. Title I’s protections also apply to people who are “regarded as” having a disability, even if they don’t actually have a disability as defined by the law.

Being Qualified for the Job

What does it mean to be qualified for the job? As the Equal Employment Opportunity Commission (EEOC) explains, Title I’s protections apply to: “an individual with a disability who meets the skill, experience, education, and other job-related requirements of a position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of a job.” Title I Technical Assistance Manual.

In other words, the ADA protects employees and applicants with disabilities who are otherwise qualified to perform the essential functions of the job. The ADA does not mandate that you hire or retain employees who are not qualified, nor does it require that you hire or retain employees who cannot complete the essential functions of the job when provided an accommodation.

Undue Hardship and Direct Threat

Camps are required to provide reasonable accommodations to employees unless the accommodations pose an undue hardship to the camp, which is defined as an action that is: “excessively costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business.”

Likewise, camps can deny employment to employees who would pose a “direct threat” and present a “significant risk of substantial harm” to the health or safety of themselves or others – but only if the direct threat cannot be mitigated with a reasonable accommodation. Title I Technical Assistance Manual.

Medical- and Disability-Related Inquiries

During the Application Process

Many camps want to know if an applicant has a disability as early as possible. However, the ADA specifically prohibits employers from asking applicants about the “existence, nature, or severity of a disability” during the job application process.

At the application stage, camps may only set forth the job description and ask applicants to confirm that they can perform the essential functions of the job with or without an accommodation. The EEOC provides a list of sample questions that employers should not ask before making a job offer:

• Do you have a heart condition?

• Do you have asthma or any other difficulties breathing?

• Do you have a disability which would interfere with your ability to perform the job?

• How many days were you sick last year?

• Have you ever filed for workers’ compensation?

• Have you ever been injured on the job?

• Have you ever been treated for mental health problems?

• What prescription drugs are you currently taking?

See Job Applicants and the ADA. After Making a Conditional Job Offer but Before Employment Begins

The EEOC does allow employers to ask the above questions, and others that may reveal a disability, after making a conditional job offer and before employment begins – but only if the employer asks the same questions of every applicant applying for the same type of job. “An employer cannot ask such questions only of those who have obvious disabilities,” cautions the EEOC. Likewise, employers are technically allowed to conduct medical examinations after making a job offer as long as all similarly-situated applicants must have the same examination. Enforcement Guidance, Pre-employment Disability-Related Questions.

However, while these questions and examinations are technically allowed, they pose some risk. As the EEOC warns: “If the employer rejects the applicant after a disability-related question or medical examination, investigators will closely scrutinize whether the rejection was based on the results of that question or examination.” Enforcement Guidance, Pre-employment Disability-Related Questions.

In other words, if you solicit medical information and then screen out a person because of their disability, then you will have to show that the reason for the rejection was “job related and consistent with business necessity,” or the individual posed a “direct threat” to themselves or others that could not be addressed through a reasonable accommodation.

But let’s envision a different situation: You ask these types of questions after making a conditional offer, hire the employee, and then separate them a few weeks later for unrelated, performance-based reasons. The employee may subsequently argue that they were separated because of their disability even though the camp did not have a job-related reason consistent with business necessity for the separation. Even if the camp did nothing wrong, it may have a hard (and costly) time showing that it separated the employee for legitimate reasons.

How to reduce this risk? Avoid seeking disability-related information from employees unless it’s absolutely necessary.

After Employment Begins

After employment begins, medical inquiries are only allowed if they are "job-related and justified by business necessity." By contrast, after making a conditional job offer and before employment begins, employers can make "unrestricted medical inquiries" -- the restrictions only concern how the employer uses the information. Once employment begins, medical inquiries are more tightly regulated.

What About Employee Health Forms?

Once the job offer is accepted, many camps require employees to provide medical forms as part of the onboarding process. While this is not the most common practice outside of the camp industry, state camp codes and ACA standards make this a nearly-standard practice among camps.

As noted above, after making a conditional job offer, the ADA does allow employers to gather medical information from employees. Indeed, regulations and ACA standards aside, many camps have a very good reason for requesting medical information from their staff. Let’s take the example of an overnight camp that’s in a remote location and far from the closest hospital. The camp medical director may need medical information on file to ensure the safety of each employee; in the event of an emergency, the camp medical center would need the information to react appropriately.

I always recommend that camps limit access to this information to the medical staff – essentially putting up a firewall between employee medical records and the HR or management team that makes employment-related decisions. Simply put, the camp medical staff should be allowed to access the information, but the HR and management staff should not (outside of an emergency).

If you review this information prior to employment and decide to withdraw a job offer to a person with a disability, then, as noted above, you will have to show that the reason for the rejection was “job related and consistent with business necessity,” or the individual posed a “direct threat” to themselves or others that could not be addressed through a reasonable accommodation.

While the details are beyond the scope of this article, camps should also note that the ADA requires that medical records be kept confidential. Camps should ensure that any medical records in their possession are stored securely, segregated from personnel records, and otherwise handled appropriately.

Reasonable Accommodation Requests

If camp management wants to proactively address accommodation needs after making a job offer or hiring an employee, then they can consider asking the following question: “Do you need an accommodation to complete the essential functions of the job? If so, please provide details about your requested accommodation.” However, like other questions that solicit medical information, this type of question exposes the camp to risk for all the reasons touched on above.

An alternative to asking this question, which many employers find preferable, is ensuring that employees know where to find your accommodation policy (see sample policy below). If an employee knows of the policy and needs an accommodation, then they’ll ask for one – without any need for the camp to preemptively solicit disability-related information.

The EEOC explains: “If a job applicant or employee has a ‘hidden’ disability – one that is not obvious – it is up to that individual to make the need for an accommodation known. If an applicant has a known disability, such as a visible disability, that appears to limit, interfere with, or prevent the individual from performing job-related functions, the employer may ask the applicant to describe or demonstrate how s/he would perform the function with or without a reasonable accommodation.” Title I Technical Assistance Manual.

The Technical Assistance Manual provides specific guidance on how to make this inquiry without violating the ADA’s prohibitions on pre-employment disability-related inquiries.

The Interactive Process

When a qualified person with a disability asks for an accommodation, the employer’s obligation is to either provide the requested accommodation or engage in an “interactive process” with the employee in an effort to identify an effective accommodation. Title I Technical Assistance Manual. This means employers need to have an active and individualized dialogue with each employee who requests an accommodation to identify an appropriate accommodation.

Making it Practical: Accommodations Policy

Bringing all this together, what might an accommodations policy look like? In consultation with their attorney and based on their specific facts and circumstances, here is the type of policy a camp might implement:

Consistent with its commitment to equal employment opportunity, Camp XYZ (“Camp”) will provide a reasonable accommodation to applicants and employees with disabilities if the reasonable accommodation would allow the individual to perform the essential functions of the job, unless doing so would create an undue hardship.

If an employee believes they need an accommodation because of a disability, the employee must request a reasonable accommodation from [NAME AND CONTACT INFORMATION]. Camp encourages employees to make their request in writing and to include a description of the accommodation requested and how the accommodation would help.

After receiving your request, Camp will engage in an interactive dialogue with you to determine your precise needs and explore potential reasonable accommodations that could address those needs. Camp encourages you to suggest specific reasonable accommodations that you believe would allow you to perform your job. However, Camp is not required to make the specific accommodation requested by you and may provide an alternative, effective accommodation, to the extent any reasonable accommodation can be made without imposing an undue hardship on Camp.

If your disability or need for accommodation is not obvious, Camp may ask you to provide supporting documents showing that you have a disability within the meaning of the ADA and applicable state or local laws, and that your disability necessitates a reasonable accommodation. If the information provided in response to this request is insufficient, Camp may require that you see a health care professional of Camp’s choosing, at Camp’s expense. In those cases, if you fail to provide the requested information or see the designated health care professional, your request for a reasonable accommodation may be denied. Camp will keep confidential any medical information obtained in connection with your request for a reasonable accommodation.

Camp makes determinations about reasonable accommodations on a case-by-case basis considering various factors and based on an individualized assessment in each situation. Camp strives to make determinations on reasonable accommodation requests expeditiously, and will inform the individual once a determination has been made.

Individuals will not be retaliated against for requesting an accommodation in good faith. Camp expressly prohibits any form of discipline, reprisal, intimidation, or retaliation against any individual for requesting an accommodation in good faith.

Please note that this is only a sample and should be reviewed by your attorney and tailored to your specific circumstances prior to use. As explained in the disclaimer below, this is an educational article and not legal advice.

Conclusion

While the ADA’s requirements are fairly straightforward, the complexity often lies in applying its requirements to the relevant facts. The DOJ and EEOC have extensive and highly-accessible guidance materials, which camps should reference with their attorneys when making ADA determinations.

Hopefully the above overview will serve as a helpful starting point to understanding the larger regulatory landscape of the ADA and putting the guidance materials into proper context.