Do I Have to Provide a Sign Language Interpreter?

I am often asked to provide an interpreter and when the issue of billing comes up, clients are sometimes surprised to find out that the deaf person is typically not responsible for paying for the interpreter.

I usually discuss their situation to find out if they are required by law to provide an ASL interpreter. I always advise them to double-check everything with the Americans with Disabilities Act (ADA) or an ADA attorney before making any decisions, but at least I am able to give them an idea of their legal obligations.

The Simple Answer

An overly simplistic answer is that if the deaf person is applying for a job and your company has more than 15 employees, then you will be responsible for providing an interpreter for the interview or any job-related communications that are essential to the hiring process or performance of the job.

If a deaf person goes to your place of business and you are not able to effectively communicate without an interpreter (e.g., via writing) with the person in order to provide services available to the general public, or the communication is expected to be very important or complex (e.g., medical visit), then you are responsible for providing an interpreter. There are few exceptions which the ADA discusses, such as if it is an undue financial burden or if it fundamentally changes the same service offered to the public.

Private companies or “Commercial Facilities”, are typically the ones who are confused as to whether they should provide an interpreter, as it is clear in Title II of the ADA pertaining to all state and local government organizations which states that the government is required to accommodate the deaf “…in all services, programs, and activities provided to the public…” – ADA Title II

Title III deals with Public Accommodations and Commercial Facilities, which is what I typically review with the company to see if they are obligated. In general, regardless of company size, section 36.201 of Title III states that:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any private entity who owns, leases (or leases to), or operates a place of public accommodation.”

Effective Communication for the Deaf

Regarding deaf people, the law enables them to receive “effective communication” in order to participate as any person from the general public would. This is often unclear, so here are a couple examples.

EXAMPLES OF EFFECTIVE COMMUNICATION

1.   A deaf person who sign language to communicate enters a car dealer looking for a new car. The salesperson may be able to communicate basic information about the cars using printed materials, writing back and forth with pen and paper, or typing to each other via phone or computer. If the deaf person becomes serious about making a purchase, a qualified interpreter may be required to go through the details of the contract and for any in-depth communication about finances, since it can be difficult to understand all the contractual complexities of buying a car.

2.   A deaf person checks in with their doctor for regular blood pressure and basic follow-ups with the staff. Writing back and forth and/or gesturing/pointing are likely all that is needed for this type of visit. However, if the deaf person has a mild stroke and returns to their doctor for a full exam and tests and asks for a sign-language interpreter then the doctor should arrange for a qualified interpreter because this type of visit has serious consequences and the details are not likely to be effectively communicated in writing or by gesturing.

In the case that using what you have on-hand doesn’t lead to effective communication, then the following are some ADA recommended aids and services that can help.

§ 36.303 Auxiliary aids and services.

• (a) General. A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.
• (b) Examples. The term “auxiliary aids and services” includes –
  • (1) Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;
  • (2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;
  • (3) Acquisition or modification of equipment or devices; and
  • (4) Other similar services and actions.
• (c) Effective communication.
  • (1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.
    • (i) For purposes of this section, “companion” means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.
    • (ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
  • (2) A public accommodation shall not require an individual with a disability to bring another individual to interpret for him or her.
  • (3) A public accommodation shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication, except –
    • (i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or
    • (ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.
  • (4) A public accommodation shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.
• (d) Telecommunications.
  • (1) When a public accommodation uses an automated-attendant system, including, but not limited to, voicemail and messaging, or an interactive voice response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including text telephones (TTYs) and all forms of FCC-approved telecommunications relay systems, including Internet-based relay systems.
  • (2) A public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls using the public accommodation´s equipment on more than an incidental convenience basis shall make available public telephones, TTYs, or other telecommunications products and systems for use by an individual who is deaf or hard of hearing, or has a speech impairment.
  • (3) A public accommodation may use relay services in place of direct telephone communication for receiving or making telephone calls incident to its operations.
  • (4) A public accommodation shall respond to telephone calls from a telecommunications relay service established under title IV of the ADA in the same manner that it responds to other telephone calls.
  • (5) This part does not require a public accommodation to use a TTY for receiving or making telephone calls incident to its operations.
• (e) Closed caption decoders. Places of lodging that provide televisions in five or more guest rooms and hospitals that provide televisions for patient use shall provide, upon request, a means for decoding captions for use by an individual with impaired hearing.
• (f) Video remote interpreting (VRI) services. A public accommodation that chooses to provide qualified interpreters via VRI service shall ensure that it provides –
  • (1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;
  • (2) A sharply delineated image that is large enough to display the interpreter´s face, arms, hands, and fingers, and the participating individual´s face, arms, hands, and fingers, regardless of his or her body position;
  • (3) A clear, audible transmission of voices; and
  • (4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.
  • (h) Alternatives. If provision of a particular auxiliary aid or service by a public accommodation would result in a fundamental alteration in the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or in an undue burden, i.e., significant difficulty or expense, the public accommodation shall provide an alternative auxiliary aid or service, if one exists, that would not result in an alteration or such burden but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the goods, services, facilities, privileges, advantages, or accommodations offered by the public accommodation.

Deaf People and Employment

• Employment and Company Size
  • Title I of the ADA requires companies with 15 or more employees to provide non-discriminatory and reasonable employment accommodation. The ADA defines an “employer” as any person who is:Is involved in an area affecting commerce
    Has 15 or more full-time workers each day; For at least 20 or more calendar weeks during year.
    This means that if you have 14 or fewer full-time employees or are open for business for less than 20 weeks a year, then you do not have to be ADA compliant.
• Exemption for Undue Burden
  • Section 36.104 allows for refusal of services if in doing so would cause “Significant difficulty or expense.” This takes into account, among other things, the financial resources of the responsible party and the cost of providing accommodation.

• Private Clubs and Churches are Exempt
  • Under Title III section  36.102 Application it states that: “(e) Exemptions and exclusions. This part does not apply to any private club (except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation), or to any religious entity or public entity.”
• Is the deaf person high?
  • Oddly enough there is a provision (36.209) under Title III that seems to allow for refusal of accommodation based on current illegal drug use. It also mentions that they are able to administer drug tests to former illegal drug users to see if they are currently using.
• Safety Risk
  • Under 36.301 can deny access to the deaf based “on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”
• Service Animal Exceptions
  • Under 36.302 of Title III, companies must accommodate service animals unless:
    • (i) The animal is out of control and the animal’s handler does not take effective action to control it; or
      (ii) The animal is not housebroken.

36.307 (Title III) Accessible or special goods.

• (a) This part does not require a public accommodation to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.
• (b) A public accommodation shall order accessible or special goods at the request of an individual with disabilities, if, in the normal course of its operation, it makes special orders on request for unstocked goods, and if the accessible or special goods can be obtained from a supplier with whom the public accommodation customarily does business.
• (c) Examples of accessible or special goods include items such as Brailled versions of books, books on audio cassettes, closed-captioned video tapes, special sizes or lines of clothing, and special foods to meet particular dietary needs.

TAX CREDITS for Providing Services

Small businesses can get tax credits for the expense of an interpreter. A small business is one with 30 or fewer employees OR with $1 million or less in gross receipts for the preceding tax year.

For More Information

I hope you have found this information useful, however it’s not a substitute for reading the law or having it interpreted by an attorney. You can contact the ADA Information Line at 1-800-514-0301 if you are still unsure about deaf people’s rights and/or your obligations under the ADA law.

To Hire an ASL Interpreter

If you would like to go ahead and book an on-site ASL or Video Remote Interpreter (VRI), then give us a call at 855-562-7768, fill out this form, or email us at spotoninterpreting@gmail.com

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