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Accommodations, Such as a Captioning Service

Question:

If an employee is participating in a conference, conference call, or training, who must pay for any accommodations, such as a captioning service? Can the costs be split between the employer and the facility providing the service?

Answer:

Under the ADA both employers (under Title I), and places of public accommodation, (under Title III), have a duty to provide reasonable accommodations. 42 U.S.C. Sec. 12101 et seq. Captioning services are considered an "auxilary aid or service" and a reasonable accommodation. (28 CFR 35.104)

EEOC:

The EEOC indicates that in a training situation, both the employer and the entity providing the training have an obligation to provide a reasonable accommodation. EEOC Guidance is pasted below:

"SUBJECT: EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

[Question] 15. Must an employer provide reasonable accommodation so that an employee may attend training programs?

Yes. Employers must provide reasonable accommodation (e.g., sign language interpreters; written materials produced in alternative formats, such as braille, large print, or on audio- cassette) that will provide employees with disabilities with an equal opportunity to participate in employer-sponsored training, absent undue hardship. This obligation extends to in-house training, as well as to training provided by an outside entity. Similarly, the employer has an obligation to provide reasonable accommodation whether the training occurs on the employer's premises or elsewhere.

Example A: XYZ Corp. has signed a contract with Super Trainers, Inc., to provide mediation training at its facility to all of XYZ's Human Resources staff. One staff member is blind and requests that materials be provided in braille. Super Trainers refuses to provide the materials in braille. XYZ maintains that it is the responsibility of Super Trainers and sees no reason why it should have to arrange and pay for the braille copy.

Both XYZ (as an employer covered under Title I of the ADA) and Super Trainers (as a public accommodation covered under Title III of the ADA)(45) have obligations to provide materials in alternative formats. This fact, however, does not excuse either one from their respective obligations. If Super Trainers refuses to provide the braille version, despite its Title III obligations, XYZ still retains its obligation to provide it as a reasonable accommodation, absent undue hardship.

Employers arranging with an outside entity to provide training may wish to avoid such problems by specifying in the contract who has the responsibility to provide appropriate reasonable accommodations. Similarly, employers should ensure that any offsite training will be held in an accessible facility if they have an employee who, because of a disability, requires such an accommodation.

Example B: XYZ Corp. arranges for one of its employees to provide CPR training. This three-hour program is optional. A deaf employee wishes to take the training and requests a sign language interpreter. XYZ must provide the interpreter because the CPR training is a benefit that XYZ offers all employees, even though it is optional."

JAN:

An employer has the obligation to provide an accommodation that will enable the individual to perform the job effectively or benefit from an equal employment opportunity. In addressing what type of accommodation is needed, an employer should determine the communication needs of the individual in relation to the specific job tasks to be performed. Effective communication might be provided through alternative methods, such as through written notes, computer assisted note taking, real time captioning, or a communication device.

Is an employer obligated to provide an interpreter for an employee to attend training or conferences under the ADA?

According to the ADA Technical Assistance Manual for Title I, Chapter 7.6, "Employees with disabilities must be provided equal opportunities to participate in training to improve job performance and provide opportunity for advancement. Training opportunities cannot be denied because of the need to make a reasonable accommodation, unless the accommodation would be an undue hardship." An employer may have the obligation to provide an interpreter as a reasonable accommodation for an employee to attend training or conferences.

If an employer contracts with an outside agency for training, such as a vocational school for example, the employer should make advance arrangements with the training entity to determine who will provide the interpreter. When the training is required or offered by the employer, the employer should take the initiative in arranging for the accommodation. In some circumstances an employer and a training entity will both have an obligation to pay for the cost of an accommodation. A vocational school, for example, may be considered a place or public accommodation having ADA Title III obligations to provide effective communication.

For more information regarding the obligation to provide accommodations during training situations, see Question #15, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act.