[blindlaw] Fw: Accommodation and Compliance series: The ADA Amendments Act of 2008

[ckrugman at sbcglobal.net]

----- Original Message ----- 
From: ckrugman at sbcglobal.net 
Sent: Saturday, January 03, 2009 12:08 AM
Subject: Accommodation and Compliance series: The ADA Amendments Act of 2008


Accommodation and Compliance Series: The ADA Amendments Act of 2008
   
    READY OR NOT, HERE IT COMES!

BACKGROUND
On January 1, 2009, the Americans with Disabilities Act (ADA) Amendments Act
of 2008 goes into effect, making some major changes to the way the
definition of disability has been interpreted in the past. The changes apply
to both the ADA and the Rehabilitation Act. Very few people argue that these
changes were not needed - the courts had interpreted the definition of
disability so narrowly that hardly anyone could meet it - but the challenge
now is understanding what the changes are and who is going to be covered as
of January 1st. We do not yet have any regulations nor do we have any court
interpretation; all we currently have are the words of the Amendments Act
and its legislative history. With that said, let's take a look at what we
know so far. 

OVERALL PURPOSE
According to Congress, the ADA Amendments Act was passed "to carry out the
ADA's objectives of providing 'a clear and comprehensive national mandate
for the elimination of discrimination' and 'clear, b, consistent,
enforceable standards addressing discrimination' by reinstating a broad
scope of protection to be available under the ADA." In other words, the
purpose of the original ADA was to eliminate discrimination. However, if
hardly anyone was covered, then hardly anyone was actually being protected
from discrimination. So, in the Amendments Act Congress fixed the definition
of disability to cover more people and as a result, prevent more
discrimination. That means that once the Act goes into effect, the question
of who has a disability will no longer be the main focus; instead, the focus
will be on whether discrimination occurred.

DEFINITION OF DISABILITY
1. New Definition. Basic Three-Part Definition Will Stay the Same

Definition: Disability.
"(1) Disability.--The term 'disability' means, with respect to an
individual-- 
 (A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
 (B) a record of such an impairment; or
 (C) being regarded as having such an impairment."

The Amendments Act did not change the actual definition of disability - the
definition is exactly the same as it was. What did change is the meaning of
some of the words used in the definition and the way those words are to be
applied to individuals.

2. Substantially Limits. Will Not Be As High a Standard

Definition: None Yet, EEOC Writing Regulations.
In the Amendments Act, Congress expressly gave the Equal Employment
Opportunity Commission (EEOC) the authority to revise its regulations
regarding the definition of substantially limits to make them consistent
with the Act's purpose. In the past, the EEOC regulations had defined
substantially limits as "significantly restricted," but Congress said that
is too high a standard - go back and make it an easier standard to meet. The
EEOC is working on the revisions, which will be available on the EEOC and
JAN Websites when final. However, it is not a quick process to revise
regulations so we do not expect them to be available by the January 1st
effective date. 

In the meantime, we have to go with what is available. We know that the
substantially limited standard is not supposed to be as hard to meet and
that more people are supposed to be covered, but what else do we know?

3. Mitigating Measures. Will Not Be Considered

Definition: Mitigating Measures, Things Such As:
"(I) medication, medical supplies, equipment, or appliances, low-vision
devices (which do not include ordinary eyeglasses or contact lenses),
prosthetics including limbs and devices, hearing aids and cochlear implants
or other implantable hearing devices, mobility devices, or oxygen therapy
equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or services; or
(IV) learned behavioral or adaptive neurological modifications.

Except:
(ii) The ameliorative effects of the mitigating measures of ordinary
eyeglasses or contact lenses shall be considered in determining whether an
impairment substantially limits a major life activity."

Another thing we know is that when determining whether a person is
substantially limited in a major life activity, we ignore the beneficial
effects of mitigating measures except ordinary eyeglasses or contact lens.
In the past, the U.S. Supreme Court held the opposite, that you do not
ignore mitigating measures. This holding resulted in a lot of people not
being covered by the ADA - people with conditions such as epilepsy,
diabetes, and mental illness, who controlled their symptoms through measures
like medication, good diet, and regular sleep. Prior to the Supreme Court
holding, few people questioned whether individuals with these types of
conditions had disabilities, but after the holding it was clear that many of
them did not, at least not under the ADA definition.  The Amendments Act
overruled the Supreme Court's holding regarding the use of mitigating
measures. 

For example, a person with epilepsy who takes medication to control her
seizures will most likely be covered under the first part of the new
definition of disability because we will consider what her limitations would
be without her medication.

And note that the Amendments Act states that we ignore the ameliorative
(i.e., beneficial) effects of mitigating measures; if the mitigating measure
itself causes any limitations, then those will be considered.

Now we know:
the substantially limits standard is not as high a standard as it was; and
when considering whether a person is substantially limited, we ignore the
beneficial effects of any mitigating measures (except ordinary eyeglasses
and contact lens) the person uses.

4. Major Life Activities. Will Be Expanded to Include Bodily Functions

Definition: Major Life Activities.
"(A) In general.--For purposes of paragraph (1), major life activities
include, but are not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.
(B) Major bodily functions.--For purposes of paragraph (1), a major life
activity also includes the operation of a major bodily function, including
but not limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions."

In the past, there was some debate over what activities were considered
"major life activities" for ADA purposes, but one of the most confusing
issues was whether someone with a medical condition that only affected
internal functions would be covered. Conditions such as gastrointestinal
disorders, cancer, sleep disorders, and heart disease often only affect
bodily functions without producing any outward limitations and courts
grappled with whether bodily functions were classified as major life
activities. Now Congress has cleared up the confusion by specifically
stating in the Amendments Act that bodily functions are indeed major life
activities.

For example, a person with insulin-dependent diabetes will most likely be
covered under the first part of the new definition of disability because we
will consider what his limitations would be without his insulin and because
endocrine system function will definitely be considered a major life
activity as of January 1, 2009. Another thing the Amendments Act states is
that an impairment that substantially limits one major life activity need
not limit other major life activities in order to be considered a
disability. Note that the lists provided in the definition of major life
activity are not exhaustive; they are just examples of some of the
activities that can be considered.

Now we know: 

the substantially limits standard is not as high a standard as it was;
when considering whether a person is substantially limited, we ignore the
beneficial effects of any mitigating measures (except ordinary eyeglasses
and contact lens) the person uses; and
when considering whether a person is substantially limited in a major life
activity, we can consider bodily functions as well as other major life
activities, and having one major life activity substantially limited is
enough. 

5. Episodic or in Remission. Limitations Will Be Considered As If Active

In the past, a person whose condition was in remission or whose limitations
came and went might not have been covered by the ADA, depending on how long
that person's limitations were in an active state. This meant that a person
with, for example, mental illness, might not be entitled to accommodations
in the workplace when his condition was active because he did not meet the
ADA's definition of disability. Congress addressed this in the Amendments
Act by stating that "an impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
active." 

For example, a person with Crohn's disease who has periodic flareups that
require hospitalization will likely be covered under the first part of the
new definition of disability because we will consider what his limitations
are during his flareups and because bowel function will definitely be
considered a major life activity as of January 1, 2009.

Now we know: 

the substantially limits standard is not as high a standard as it was;
when considering whether a person is substantially limited, we ignore the
beneficial effects of any mitigating measures (except ordinary eyeglasses
and contact lens) the person uses;
when considering whether a person is substantially limited in a major life
activity, we can consider bodily functions as well as other major life
activities, and having one major life activity substantially limited is
enough; and 
when considering whether a person whose condition is episodic or in
remission is substantially limited in a major life activity, we consider the
person's limitations as they are when the condition is in an active state.

6. Regarded As. Will Be Very Broad, With No Substantially Limits Requirement

"(A) An individual meets the requirement of 'being regarded as having such
an impairment' if the individual establishes that he or she has been
subjected to an action prohibited under this Act because of an actual or
perceived physical or mental impairment whether or not the impairment limits
or is perceived to limit a major life activity.
(B) Regarded as does not apply to impairments that are transitory and minor.
A transitory impairment is an impairment with an actual or expected duration
of 6 months or less."

The Amendments Act makes regarded as coverage under the ADA very broad. To
be covered, an individual only has to establish that an employer
discriminated against him because of a medical condition, whether he
actually has one or the employer just thought he did. He does not have to
meet the substantially-limited-in-a-major-life-activity standard. One
exception under regarded as is that impairments that are transitory (lasting
or expected to last 6 months or less) and minor are not covered. Arguably,
impairments that are transitory or minor, but not both, will be covered.

For example, if an employer denies employment to a job applicant solely
because the applicant has had back problems in the past, without looking at
whether he can safely perform the job, the applicant will most likely be
covered under the regarded as part of the definition. Congress broadened
coverage under the regarded as part of the definition to help address the
prejudice, antiquated attitudes, and the failure to remove societal and
institutional barriers that still exist.

Now we know: 

the substantially limits standard is not as high a standard as it was;
when considering whether a person is substantially limited, we ignore the
beneficial effects of any mitigating measures (except ordinary eyeglasses
and contact lens) the person uses;
when considering whether a person is substantially limited in a major life
activity, we can consider bodily functions as well as other major life
activities, and having one major life activity substantially limited is
enough; 
when considering whether a person whose condition is episodic or in
remission is substantially limited in a major life activity, we consider the
person's limitations as they are when the condition is in an active state;
and 
regarded as is very broad, does not require individuals to meet the
substantially-limited-in-a-major-life-activity standard, but does not
include impairments that are transitory and minor.

REASONABLE ACCOMMODATION

The Amendments Act did not change the definition of reasonable
accommodation. However, the Act does clarify that only individuals who meet
the first (actual disability) and second (record of a disability) parts of
the definition are entitled to accommodations; individuals who only meet the
third part (regarded as) are not entitled to accommodations. Even though the
definition did not change, it is clear that with a broader definition of
disability, more focus will be placed on providing reasonable
accommodations. One thing to keep in mind regarding a request for reasonable
accommodation is that the accommodation does not have to be tied to the
substantially limited major life activity that established that the employee
has a disability. For example, a person with cancer may establish that she
has a disability because she is substantially limited in normal cell growth,
which is listed as a major life activity under the "bodily functions"
category in the Amendments Act. However, her accommodation request is
related to fatigue and nausea resulting from her medical treatment. Once the
employee establishes that she has a disability, then the employer must
consider providing accommodations for any limitations she has as a result of
her impairment, not just the limitation that established her disability.

Another thing to keep in mind is the flexibility built into the reasonable
accommodation obligation under the ADA. For example:

employers can choose among effective accommodation options and do not always
have to provide the requested accommodation,
employers do not have to provide accommodations that pose an undue hardship,
employers do not have to provide as reasonable accommodations personal use
items needed in accomplishing daily activities both on and off the job,
employers do not have to make an accommodation for an individual who is not
otherwise qualified for a position, and
employers do not have to remove essential functions, create new jobs, or
lower production standards as an accommodation.
The EEOC has many publications to help employers understand reasonable
accommodation under the ADA and the Rehabilitation Act:

Reasonable Accommodation and Undue Hardship under the ADA at
http://www.eeoc.gov/policy/docs/accommodation.html

Practical Advice for Drafting and Implementing Reasonable Accommodation
Procedures under Executive Order 13164 at
http://www.eeoc.gov/federal/implementing_accommodation.html

Establishing Procedures to Facilitate the Provision of Reasonable
Accommodation-Policy Guidance on Executive Order 13164 at
http://www.eeoc.gov/policy/docs/accommodation_procedures.html

EEOC's Internal Accommodation Procedures at
http://www.eeoc.gov/policy/docs/accommodation_procedures_eeoc.html

PRACTICAL TIPS

What can employers do now to get ready for January 1st? Even though the EEOC
regulations are not available yet, there are some practical things that
employers can do to get ready for the Amendments Act to go into effect:

1. Review job descriptions, qualification standards, and accommodation
procedures.

The ADA does not require employers to hire unqualified applicants with
disabilities nor does it require employers to retain employees who can no
longer perform the essential functions of their jobs because of a
disability. However, the ADA does prohibit employers from: using unnecessary
qualification standards to weed out applicants with disabilities, relying on
inaccurate job descriptions to determine that an employee with a disability
can no longer perform her job, and failing to provide reasonable
accommodations absent undue hardship. Therefore, it is important for
employers to review their job descriptions, qualification standards, and
accommodation procedures to make sure they comply with the ADA.

This is where JAN can help. JAN provides one-on-one, free consultation about
all aspects of workplace accommodations. For more information about JAN
services, visit the JAN Website at http://www.jan.wvu.edu.  JAN also offers
several publications for employers:

Job Descriptions at http://www.jan.wvu.edu/media/JobDescriptions.html

Five Practical Tips for Providing and Maintaining Effective Job
Accommodations at http://www.jan.wvu.edu/media/FivePracticalTips.doc

Five Practical Tips Webcast at http://www.jan.wvu.edu/training/library.htm

Employers' Practical Guide to Reasonable Accommodation under the Americans
with Disabilities Act (ADA) at http://www.jan.wvu.edu/Erguide

2. Focus on performance and conduct.

As mentioned previously, the Amendments Act broadens the definition of
disability and places the focus on the actions of employers. One problem
employers can have is making assumptions or comments about employees'
medical conditions, which could lead employees to believe that decisions
were made on the basis of their real or perceived disabilities, even if
that's not the case. To help avoid this problem, employers should focus on
any performance or conduct problems that employees have and apply their
policies in a uniform manner rather than assuming that a medical problem or
disability is contributing to or causing the problem. In general, it is the
employee's responsibility to let the employer know that a conduct or
performance problem is disability-related and to request an accommodation to
overcome the problem so there is usually no reason for an employer to bring
up medical issues first.

For more information, see The ADA: Applying Performance and Conduct
Standards to Employees with Disabilities at
http://www.eeoc.gov/facts/performance-conduct.html

3. Train frontline supervisors and managers.

No amount of preparation will be effective unless employers train their
frontline managers and supervisors because the frontline usually has the
most contact with employees on a day to day basis. If nothing else,
employers should train their frontline to refrain from mentioning medical
conditions unless relevant, to recognize accommodation requests, and to
remember who to contact for assistance (many employers, as part of their
accommodation procedures, appoint a responsible person to handle
accommodation requests, keep confidential medical information, and help
avoid discriminatory employment decisions).

Another important reason to train frontline supervisors and managers is to
help reduce retaliation claims. The frontline needs to understand that
making negative or derogatory remarks in response to an accommodation
request can be considered retaliation.

4. Document actions and decisions.

Because the focus of the ADA will shift away from the definition of
disability and toward whether employers complied with their obligations,
documentation of actions and decisions can be very important if an employee
alleges discrimination. In the past, many such allegations were never looked
at because the employee could not meet the narrow definition of disability.
Now, especially with the broad coverage under the regarded as part of the
definition, most cases will hinge on whether an employer discriminated.
Therefore, employers should keep accurate records because it can be
difficult to remember what happened without good recordkeeping and written
records are generally considered more reliable than memory alone.

Another important aspect of documentation is effective communication with
employees. Many problems occur because employers do not let employees know,
for example, how their performance needs to improve, the status of their
accommodation requests, or why an accommodation request was denied.
Employees need to be informed so they can have the opportunity to address
performance problems or suggest alternative accommodation options.

The message is ready to be sent with the following file or link attachments:

Shortcut to: http://www.jan.wvu.edu/bulletins/adaaa1.htm

Note: To protect against computer viruses, e-mail programs may prevent
sending or receiving certain types of file attachments.  Check your e-mail
security settings to determine how attachments are handled.
 <<adaaa1.url>> 

------ End of Forwarded Message