This winter, the United States Department of Justice (“DOJ”) released a new technical assistance guidance (the “Guidance”) elaborating upon the Effective Communication obligations set forth in the regulations governing Titles II and III of the Americans with Disabilities Act and the accompanying 2010 Standards for Accessible Design. The Guidance is available for download from the DOJ.

This Guidance discusses the requirements under the ADA for enabling effective communication with individuals with vision, hearing, or speech disabilities (“communication disabilities”).  As a general rule, covered entities must provide auxiliary aids and services when needed to communicate effectively with individuals who have communication disabilities, and entities must consider the nature, length, complexity, and context of the communication and the person’s normal method(s) of communication in determining what may constitute effective communication in a given circumstance.

The Guidance details various types of auxiliary aids and services that may be utilized to facilitate effective communication, including technologies such as real-time captioning, telecommunications and video relay services, and video remote interpreting.  The Guidance further underscores that, when choosing an aid or service, Title II entities (e.g., state and local governments) are required to give primary consideration to the choice of aid or service requested by the person who has a communication disability, while Title III entities (e.g., businesses and nonprofit organizations that serve the public) are encouraged to consult with the person with a disability to discuss what aid or service might be appropriate, though the ultimate determination is left to the entity so long as it facilitates effective communication.  All covered entities may require reasonable advance notice from individuals requesting aids or services, but “walk-in” requests must also be honored to the greatest extent possible.

The guidance emphasizes that the ADA places the responsibility for providing effective communication directly on the covered entity.  As such, with regard to the use of interpreters, an entity cannot require a person to bring someone to interpret for him or her except in two narrowly defined situations: (i) in an emergency involving an imminent threat to the safety or welfare of an individual or the public where a qualified interpreter is not available; or (ii) where an individual with a communication disability requests that an accompanying adult interpret, the accompanying adult agrees, and reliance on the accompanying adult is appropriate under the circumstances.  A minor child may be relied upon to interpret under the emergency exception, but only an adult may be utilized under the second exception.  Further, a covered entity may not rely upon an accompanying adult under the second exception where there is reason to doubt the person’s impartiality or effectiveness, such as where the companion feels conflicted about communicating certain information or has a personal stake in the outcome of a situation.

Finally, the guidance discusses two available affirmative defenses – undue burden and fundamental alteration of the nature of the goods and services provided to the public – detailing various specific factors to be taken into consideration for Title II government entities versus Title III businesses and nonprofits.  The guidance emphasizes, however, that even where a particular aid or service is determined to result in an undue burden, the entity must still provide another effective aid or service where possible.