The ski area industry continues to feel its way in trying to comply—or learn how to comply—with the provisions of the Americans with Disabilities Act (ADA) which took effect on January 26, 1992. (See SAM, January 1992.) The book is still being written on how the vaguely drafted legislation will eventually be interpreted in the real world, and the ski industry is appropriately involved in providing input. This article will help bring readers up to speed. — The Editors.
There was much concern after passage of ADA because of the vague wording used—fuzzy terms the industry had successfully fought to keep out of the Skier Responsibility legislation enacted in over 20 states.
For example, the ADA specifies that the employer “make reasonable accommodations” for a worker’s disability. However, these accommodations are not required should they represent an “undue hardship” to the employer. This ambiguity was predicted to lead to substantial amounts of litigation.
According to the Wall Street Journal (WSJ), claims for ADA violations are being filed at the rate of a thousand a month. While this is fewer than what some critics of the law had predicted, liberal interpretation may lead to a broadening of the types of suits brought under the Act in the future. As an example, the WSJ cites the attempt to ban smoking in restaurants on the grounds that “the fast food chains discriminate against people with respiratory ailments because smoking aggravates their breathing problems, forcing them to eat elsewhere.”
The ADA contains two Titles that directly impact ski area operations: Title I—Employment—Prohibits employers from discriminating based on an individual’s disability with respect to the application for, and the terms of, employment; Title II—Public Accommodations—Prohibits discrimination in places of public accommodation and commercial facilities.
To comply with Title I, means breaking each position down into its essential job functions. These functions must be a fundamental part of the job being reviewed. For example, does the job exist because of the function, and would elimination of this function materially alter the job? How often is the function performed? If an individual cannot perform the essential functions of the job, and no reasonable accommodations can be made, the applicant can be denied the position.
As an example, the duties of a lift attendant might include such functions as visual inspection, helping skiers into chairs, maintaining snow cover in the loading/unloading area, operation of emergency stop equipment etc. Such functions would be considered essential and would presuppose the attendant not being impaired as to sight, hearing or movement. It should be noted that the ADA allows an employer to deny a position to an applicant who poses a direct threat to the health and safety of others.
But what are the reasonable accommodations that must be considered? These would include job restructuring, a part-time or modified work schedule, reassignment and the modification of equipment and devices. The applicability of these is subject to exclusion based on undue hardship on the employer.
Norm Sothan, risk manager at Copper Mountain, indicated that the Act did not have a significant impact on their operations this past winter. “In terms of employment,” Sothan said, “we saw what changes were going to be needed and had adapted our procedures prior to the implementation of ADA. Sothan also suggested that ski areas might wish to contact the Equal Employment Opportunity Council (EEOC) for their manual M-1A, which provides technical assistance on ADA.
Under Title III, persons with disabilities are to be provided accommodations and access equal, or similar to, that available to the general public. To comply, “physical and communications barriers must be removed to the extent that such changes are readily achievable, meaning that they can be done (in the words of the law) without much difficulty or expense.
Because of such wording, the achievability of barrier removal must be considered on a case-by-case basis, even though the Justice Department has noted the types of barrier removal that may be readily achievable: installing ramps, repositioning shelves, rearranging of furniture, widening doors, installing accessible door hardware and creating designated and accessible parking spaces.
In an effort to help ski areas comply with ADA, NSAA conducted seminars this past winter that were led by John Rice, v.p. of Bear Mountain, Calif. Among the steps suggested by Rice: 1)Review, and if needed, revise application and hiring forms; 2) In place of pre-employment physicals (where potentially disqualifying disabilities may be discovered), conduct the physical after the applicant has applied for the job, been interviewed and offered the job subject to a physical exam that relates to the duties involved; 3) Make reasonable accommodations where possible, such as lowering the height of a work table to accommodate a wheelchaired worker; and 4) When planning for expansion or remodeling, factor in access for the disabled.
Rice encouraged operators to apply basic risk management criteria to these individual business decisions. To help in making them, he suggested a self-test:
- Get in a wheelchair and move about and around your area; ditto with ear plugs and ditto with blindfold;
- Check your drinking fountains and restroom stall sizes;
- With the perspective of the disabled, look at your first aid facilities, signage, walkways, stairs, ramps and transportation (new purchases must be ADA-proof).
Since each ski area has unique characteristics, Rice feels networking at the regional association level is critical.
On the development side, George Willett, of Showdown Ski Area in Montana, noted that there are some very real costs that have to be considered in future development plans. Showdown has decided to go ahead with an addition to their base facilities rather than a new structure, partially due to costs associated with ADA compliance.
In addition to NSAA’s seminars, the American Ski Federation (ASF) and the Forest Service (USFS) are working on a joint project to develop a guide for ski area operations called “Design Guide for Universal Access to Outdoor Recreation.” It is meant to be a resource, not a standard, for providers of recreation on Forest land.
Carrie Bowers of ASF noted that the deadline for the ski area portion of the guide is May. When published, it will be available through NSAA. Industry representatives working on the guide were Jack Bucheister (Winter Park), Katherine Hayes (Tahoe Handicap Ski School), John Rice and George Willett.
The guide is important for another reason: it will serve as a vehicle to give suggestions to the Architectural Barriers and Compliance Board, which is in the process of drafting regulations for ADA compliance. Deadline for these regulations is January 1995.
Bowers encouraged (and Ski Area Management encourages) ski area operators to forward written comment on these issues which can be passed along to that board for consideration.
Still available from NSAA for the printing charge of $45 is the single manual that was compiled of the relevant regulations, which otherwise must be found in several different documents.
