[blindlaw] Fw: Accommodation and Compliance series: TheADAAmendments Act of 2008

[ckrugman at sbcglobal.net]

Apparently, that is an example of someone who is not considered disabled 
that they use repeatedely.
Chuck
----- Original Message ----- 
From: "Mark BurningHawk" <stone_troll at sbcglobal.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Saturday, January 03, 2009 7:50 AM
Subject: Re: [blindlaw] Fw: Accommodation and Compliance series: 
TheADAAmendments Act of 2008


> Am I understanding correctly, that a person with contact lenses is 
> considered disabled?
>
> ----- Original Message ----- 
> From: <ckrugman at sbcglobal.net>
> To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>; 
> <fdra at yahoogroups.com>
> Sent: Saturday, January 03, 2009 12:16 AM
> Subject: [blindlaw] Fw: Accommodation and Compliance series: The 
> ADAAmendments Act of 2008
>
>
>>
>> ----- 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
>>
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