By Paul Kehoe and Minh Vu

As noted in an October 2013 blog post (here), more than three years have passed since the Department of Justice (“DOJ”) revised its regulations requiring businesses and state and local governments (“covered entities”) to allow the use of other power-driven mobility devices (“OPDMDs”) in their facilities by individuals with mobility disabilities.  Unlike wheelchairs and scooters, OPDMDs are mobility devices that are not designed primarily for use by people with mobility disabilities (e.g., Segways™ and golf carts).  Last month, the DOJ issued its first full technical guidance document on this topic.  Our takeaway from this recent guidance is that DOJ does not want covered entities limiting the use of OPDMDs, especially Segways, unless there is a very good reason to do so.  DOJ also expects covered entities to develop written policies and rules for OPDMD use and train their employees on how to implement those policies.

The guidance restates the five assessment factors that covered entities should analyze when determining whether the use of a particular OPDMD type should be permitted in a particular facility by people with mobility disabilities.  They are:
Continue Reading

As we’ve previously reported, new Department of Justice rules give individuals with mobility disabilities the right under the ADA to use a wide variety of non-traditional powered mobility devices in public accommodations facilities.  The lawsuits and complaints about this issue are on the rise so businesses should familiarize themselves with this issue to avoid

By Minh Vu and Paul Kehoe

Since we reported that the Department of Justice (“DOJ”) issued its proposed regulations last month concerning the definition of a “disability” under Titles II (applicable to state and local governments) and III (applicable to public accommodations) of the Americans with Disabilities Act (ADA), we have received a number of inquiries about the regulations’ impact and whether clients need to take any action.  We share here our initial thoughts.

Background and Key Provisions.  The proposed regulations implement the ADA Amendments Act of 2008 (ADAAA) which amended the Americans with Disabilities Act of 1990 (ADA).  Congress passed the ADAAA in response to several court decisions, including from the Supreme Court, that narrowly interpreted the definition of “disability.”   The point of the ADAAA, according to the DOJ, was to “mak[e] it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute.”

In March 2011, the Equal Employment Opportunity Commission (“EEOC”) issued its final regulations to implement the ADAAA’s requirements for Title I of the ADA, which prohibits disability discrimination by employers.  These DOJ proposed regulations will implement ADAAA requirements for Titles II and III of the ADA, which prohibit discrimination in state and local programs and by public accommodations, respectively.  DOJ’s proposed regulations closely track the statutory requirements of the ADAAA and the EEOC’s final regulations.

The ADAAA did not change the ADA’s definition of disability, which continues to be:
Continue Reading

By Minh Vu and Paul Kehoe

Many individuals with disabilities are choosing other power-driven mobility devices (OPMDs) such as Segways™ over traditional wheelchairs and scooters to provide them with enhanced mobility.  In response, as we previously reported, the Department of Justice (DOJ) amended its regulations in 2010 to require businesses to allow the use of OPMDs in their facilities unless the business can establish that the particular OPMD cannot be operated safely within any particular facility.  Three years later, businesses still have very little practical guidance from the courts and DOJ about when they may limit the use of these devices.

The regulations specify that businesses must analyze five factors to determine whether they must allow a particular OPMD to be used in a specific facility, including (i) the type, size, weight, dimensions and speed of the device, (ii) the facility’s pedestrian traffic, (iii) the facility’s design and operational characteristics, (iv) whether legitimate safety requirements can be established to permit the safe operation of another OPMD in that facility, and (v) whether the use of that OPMD creates a substantial environmental harm or conflicts with federal land management laws.  But there is little guidance on how to apply these factors to specific situations.

The DOJ’s position is that “in the vast majority of circumstances,” public accommodations would have to admit Segways™ and other OPMDs.  In its technical guidance document, ADA Update, A Primer for Small Businesses, the DOJ encourages businesses to develop written policies based on these factors specifying when OPMDs will be permitted on their premises and to communicate those policies to the public.  However, it does not give examples of scenarios in which OPMDs can be excluded, other than to say a business may be able to limit OPMD use at certain times of the day when a facility has a high volume of pedestrian traffic.


Continue Reading