BNA'S AMERICANS WITH DISABILITIES ACT MANUAL 

No.4 
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APPENDIX G

DISABILITY-RELATED TAX PROVISIONS APPLICABLE TO BUSINESSES

Excerpted from ADA Handbook, published by the Department of Justice and the Equal Employment Opportunity Commission.

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Disability-Related Tax Provisions Applicable to Businesses

The three disability-related provisions in the Internal Revenue Code applicable to businesses described below are of particular interest to businesses and people with disabilities:

1) Targeted Jobs Tax Credit (Title 26, Internal Revenue Code, section 51)
Employers are eligible to receive a tax credit in the amount of 40 percent of the first $6,000 of first-year wages of a new employee who has a disability. There is no credit after the first year of employment. For an employer to qualify for the credit, a worker must have been employed for at least 90 days or have completed at least 120 hours of work for the employer. The Revenue Reconciliation Act of 1990, Public Law 101-508, extended this tax credit through December 31, 1991.

[Editor's note: HR 3909, Public Law 102-227, extended this tax credit through June 30, 1992.]

2) Tax Deduction to Remove Architectural and Transportation Barriers to People with Disabilities and Elderly Individuals (Title 26, Internal Revenue Code, section 190)
Allows a deduction for “qualified architectural and transportation barrier removal expenses.” Only expenditures that are for the purpose of making any facility or public transportation vehicle owned or leased by the tax- payer for use in connection with his or her trade or business more accessible to, and usable by, handicapped and elderly individuals are eligible for the deduction. The taxpayer must establish, to the satisfaction of the Secretary of the Treasury, that the resulting removal of the barrier meets the standards promulgated by the Secretary with the concurrence of the U.S. Architectural and Transportation Barriers Compliance Board.

For purposes of this section, a “handicapped individual” is any individual who has a physical or mental disability (including, but not limited to, deafness and blindness) which, for that individual, constitutes or results in a functional limitation to employment, or who has any physical or mental impairment that substantially limits one or more major life activities of that individual.

The deduction may not exceed $15,000 for any taxable year. (The maximum deduction had been $35,000 prior to passage of Public Law 101-508 in 1990, which lowered the maximum deduction.)

3) Disabled Access Tax Credit (Title 26, Internal Revenue Code, section 44) This tax credit is available to “eligible small businesses” in the amount of 50 percent of “eligible access expenditures” for the taxable year that exceed $250 but do not exceed $10,250.

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Following are two sample job descriptions that are used in the health-care industry. ADA does not require employers to have written job descriptions. However, EEOC has stated that when investigating ADA complaints, it will consider, along with other relevant evidence, the employer's judgment in identifying the “essential functions” of a job, as set forth in job descriptions that the employer wrote before advertising or interviewing for the job. (For more information, see p. 90:0514.)


SAMPLE JOB DESCRIPTION

JOB TITLE: Registered Nurse

GENERAL STATEMENT OF DUTIES: Provides professional nursing care for clinic patients following established standards and practices.

SUPERVISION RECEIVED: Reports directly to the Nursing Service Supervisor.

SUPERVISION EXERCISED: None

TYPICAL PHYSICAL DEMANDS: Requires full range of body motion including handling and lifting patients, manual and finger dexterity and eye-hand coordination. Requires standing and walking for extensive periods of time. Occasionally lifts and carries items weighing up to 50 pounds. Requires corrected vision and hearing to normal range. Requires working under stressful conditions or working irregular hours. Requires some exposure to communicable diseases or bodily fluids.

TYPICAL WORKING CONDITIONS: Frequent exposure to communicable diseases, toxic substances, ionizing radiation, medicinal preparations and other conditions common to a clinic environment.

EXAMPLES OF DUTIES: (This list may not include all of the duties assigned)

1. Performs general nursing care to patients. Administers prescribed medications and treatments in accordance with nursing standards.
2. Prepares equipment and aids physician during treatment, examination, and testing of patients.
3. Observes, records, and reports patient’s condition and reaction to drugs and treatments to physicians. Dispenses medication as directed.
4. Oversees appointment bookings and ensures preferences are given to patients in emergency situations. Maintains timely flow of patients.
5. Greets patients and prepares them for physician examination. Screens patients for appropriate information. Instructs patients in collection of samples and tests.
6. Arranges for patient testing and admissions.
7. Responds to and refers incoming telephone calls. Instructs patient and family regarding medications and treatment instructions.
8. Maintains and reviews patients records, charts, and other pertinent information. Posts tests and examination results.
9. Maintains exam rooms for necessary supplies and materials. Ensures cleanliness. Prepares list of medical supplies needed.
10. Screens and refers pharmaceutical representatives.
11. Attends required meetings and participates in committees as requested.

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12. Participates in professional development activities and maintains professional affiliations.
13. Maintains patient confidentiality.
14. Performs related work as required.

PERFORMANCE REQUIREMENTS:

Knowledge, Skills, & Abilities:

Knowledge of the professional nursing theory and practice to give and evaluate patient care. Knowledge of organizational policies, regulations and procedures to administer patient care. Knowledge of medical equipment and instruments to administer patient care. Staff. Knowledge of common safety hazards and precautions to establish a safe work environment. Skill in applying and modifying the principles, methods and techniques of professional nursing to provide ongoing patient care. Skill in preparing and maintaining records, writing reports, and responding to correspondence. Skill in developing and maintaining department quality assurance. Skill in establishing and maintaining effective working relationships with patients, medical staff, and the public. Ability to maintain quality control standards. Ability to react calmly and effectively in emergency situations. Ability to interpret, adapt and apply guidelines and procedures.
Ability to communicate clearly.
Education: Graduate of an accredited school of nursing.
Experience: Prefer one year of professional nursing experience in a clinic setting.
Certificate /License: Possession of a State Registered Nurse license. CPR certification.
ALTERNATIVE TO MINIMUM QUALIFICATIONS: None

Reprinted with permission of Keck, Mahin and Cate.

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SAMPLE JOB DESCRIPTION

JOB TITLE: Medical Records Clerk
GENERAL SUMMARY OF DUTIES: Files, locates, logs, retrieves and delivers medical records as assigned.
SUPERVISION RECEIVED: Reports directly to Medical Records Supervisor.
SUPERVISION EXERCISED: None.
TYPICAL PHYSICAL DEMANDS: Requires prolonged standing or sitting. Requires frequent bending, stooping or stretching. May require lifting up to 50 pounds. Requires eye-hand coordination and manual dexterity. Requires the ability to distinguish letters or symbols. Requires the use of office equipment, such as computer terminals, telephones or copiers. Requires normal vision range and the absence of color-blindness.
TYPICAL WORKING CONDITIONS: Work is performed in an office environment. Some contact with staff.
EXAMPLES OF DUTIES: (This list may not include all of the duties assigned)
1. Pulls charts for scheduled appointments in advance. Inserts out cards.
2. Delivers, transports, sorts, and files returned charts.
3. Picks up lab reports, dictations, x-rays, and correspondence.
4. Continually checks for misfiled charts and refiles according to filing system. Maintains orderly files.
5. Files all medical reports. Purges obsolete records and files in storage.
6. Destroys outdated records following established procedures for retention and destruction.
7. Makes up new patient charts. Repairs damaged charts. Assists in locating and filing records.
8. Works with medical assistants and other staff to route patient charts to proper location.
9. Answers telephone, takes messages, and gives routine information in accordance with established procedures.
10. Follows medical records policies and procedures.
11. Duplicates documents and forms as directed.
12. Attends required meetings and participates in committees as requested.
13. Enhances professional growth and development though inservice meetings, education programs, conferences, etc.
14. Maintains patient confidentiality.
15. Performs related work as required.

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PERFORMANCE REQUIREMENTS:
Knowledge, Skills, & Abilities:
Knowledge of medical records filing systems. Skill in English grammar and spelling. Skill in establishing and maintaining effective working relationships with staff. Ability to maintain confidentiality of sensitive information. Ability to file and maintain patient records, files, reports, and other correspondence.

Education:
1. High school diploma or GED
2. Completion of course in medical records technology.

Experience: 
1. Previous experience in medical transcription preferred.
2. Typing ability of 60 wpm.
3. Word processing experience.

Certificate/License: None
ALTERNATIVE TO MINIMUM QUALIFICATIONS: None

Reprinted with permission of Keck, Mahin and Cate.

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historic property. In cases where physical access cannot be provided because of either this special limitation, or because an undue financial burden or fundamental alteration would result, alternative measures to achieve program accessibility must be undertaken.

ILLUSTRATION: Installing an elevator in an historic house museum to provide access to the second floor bedrooms would destroy architectural features of historic significance on the first floor. Providing an audio-visual display of the contents of the upstairs rooms in an accessible location on the first floor would be an alternative way of achieving program accessibility.

Does the special limitation apply to programs that are not historic preservation programs, but just happen to be located in historic properties? No. In these cases, nonstructural methods of providing program accessibility, such as relocating all or part of a program or making home visits, are available to ensure accessibility, and no special limitation protecting the historic structure is provided.

II-5.6000 Time periods for achieving program accessibility. Public entities must achieve program accessibility by January 26, 1992. If structural changes are needed to achieve program accessibility, they must be made as expeditiously as possible, but in no event later than January 26, 1995. This three-year time period is not a grace period; all changes must be accomplished as expeditiously as possible. A public entity that employs 50 or more persons must develop a transition plan by July 26, 1992, setting forth the steps necessary to complete such changes. For guidance on transition plan requirements, see II-8.3000.

II-6.0000 NEW CONSTRUCTION AND ALTERATIONS
Regulatory references: 28 CFR 35.151.

II-6.1000 General. All facilities designed, constructed, or altered by, on behalf of, or for the use of a public entity must be readily accessible and usable by individuals with disabilities, if the construction or alteration is begun after January 26, 1992.
What is “readily accessible and usable?” This means that the facility must be designed, constructed, or altered in strict compliance with a design standard. The regulation gives a choice of two standards that may be used (see II-6.2000).

II-6.2000 Choice of design standard: UFAS or ADAAG

II-6.2100 General. Public entities may choose from two design standards for new construction and alterations. They can choose either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG), which is the standard that must be used for public accommodations and commercial facilities under title III of the ADA. If ADAAG is chosen, however, public entities are not entitled to the elevator exemption (which permits certain buildings under three stories or under 3,000 square feet per floor to be constructed without an elevator).

Many public entities that are recipients of Federal funds are already subject to UFAS, which is the accessibility standard referenced in most section 504 regulations.

Which standard is stricter, UFAS or ADAAG? The many differences between the standards are highlighted below. In some areas, UFAS may appear to be more stringent. In other areas ADAAG may appear to be more stringent. Because of the many differences, one standard is not stricter than the other.

Can a public entity follow ADAAG on one floor of a new building and then follow UFAS on the next floor? No. Each facility or project must follow one standard completely.

Can a public entity follow UFAS for one alteration project and then follow ADAAG for another alteration project in the same building? No. All alterations in the same building must be done in accordance with the same standard.

II-6.3000 Major differences between ADAAG and UFAS. Set forth below is a summary of some of the major differences between ADAAG and UFAS.

II-6.3100 General principles

1) Work areas:

ADAAG: Requires that areas used only by employees as work areas be designed and constructed so that individuals with disabilities can approach, enter, and exit the areas.

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There is, then, only a limited application of the standards to work areas (§4.1.1(3)).

UFAS: Contains no special limited requirement for work areas. The UFAS standards apply (as provided in the Architectural Barriers Act) in all areas frequented by the public or which “may result in employment ... of physically handicapped persons” (§1).

2) Equivalent facilitation
ADAAG: Departures from particular standards are permitted where alternatives will provide substantially equivalent or greater access (§2.2).

UFAS: UFAS itself does not contain a statement concerning equivalent facilitation. However, section 504 regulations, as well as the Department’s title II regulation (28 CFR 35.151(c)), state that departures are permitted where it is “clearly evident that equivalent access” is provided.

3) Exemption from application of standards in new construction
ADAAG: Contains a structural impracticability exception for new construction: full compliance with the new construction standards is not required in the rare case where the terrain prevents compliance (§4.1.1(5)(a)).

UFAS: Does not contain a structural impracticability exception (or any other exception) for new construction. 

4) Exemption from application of standards in alterations 

ADAAG: For alterations, application of standards is not required where it would be "technically infeasible" (i.e., where application of the standards would involve removal of a load-bearing structural member or where existing physical or site restraints prevent compliance). Cost is not a factor (§4.1.6(1)U)). 

UFAS: Application of standards is not required for alterations where "structurally impracticable," i.e., where removal of a load-bearing structural member is involved or where the result would be an increased cost of 50 percent or more of the value of the element involved (§§4.1.6(3); 3.5 ("structural impracticability")). Cost is a factor. (Note that the similar term, "structural impracticability," is used in ADAAG (see item #3 above), but in ADAAG it is used in relation to new construction. In UFAS, it is used in relation to alterations, and it has a different meaning.)


5) Alterations triggering additional requirements

ADAAG: Alterations to primary function areas (where major activities take place) trigger a “path of travel” requirement, that is, a requirement to make the path of travel from the entrance to the altered area — and telephones, restrooms, and drinking fountains serving the altered area — accessible (§4.1.6(2)). But, under the Department of Justice title III rule, a public entity is not required to spend more than 20% of the cost of the original alteration on making the path of travel accessible, even if this cost limitation results in less than full accessibility (28 CFR 36.403(f))

UFAS: If a building undergoes a “substantial alteration” (where the total cost of all alterations in a 12 month period amounts to 50% or more of the value of the building), the public entity must provide an
accessible route from public transportation, parking, streets, and sidewalks to all accessible parts of the building; an accessible entrance; and accessible restrooms (§4.1.6(3)).

6) Additions
ADAAG: Each addition to an existing building is regarded as an alteration subject to the ADAAG alterations

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