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

Sun Jan 4 00:30:00 UTC 2009

Okay, but he still needs a screen-reader.  No martial art  know of will let 
you read a screen. *grin*  And he reads Braille as well.  So maybe that 
would be enough to define him as disabled--still, seems rather arbitrary to 
base disability on accommodation rather than scientific evidence like 
medical records or whatever.

----- Original Message ----- 
From: <ckrugman at sbcglobal.net>
To: "NFBnet Blind Law Mailing List" <blindlaw at nfbnet.org>
Sent: Saturday, January 03, 2009 3:40 PM
Subject: Re: [blindlaw] Fw: Accommodation and Compliance 
series:TheADAAmendments Act of 2008

> 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
>>>
>>> _______________________________________________
>>> blindlaw mailing list
>>> blindlaw at nfbnet.org
>>> http://www.nfbnet.org/mailman/listinfo/blindlaw_nfbnet.org
>>> To unsubscribe, change your list options or get your account info for 
>>> blindlaw:
>>> http://www.nfbnet.org/mailman/options/blindlaw_nfbnet.org/stone_troll%40sbcglobal.net
>>
>>
>> _______________________________________________
>> blindlaw mailing list
>> blindlaw at nfbnet.org
>> http://www.nfbnet.org/mailman/listinfo/blindlaw_nfbnet.org
>> To unsubscribe, change your list options or get your account info for 
>> blindlaw:
>> http://www.nfbnet.org/mailman/options/blindlaw_nfbnet.org/ckrugman%40sbcglobal.net
>
>
> _______________________________________________
> blindlaw mailing list
> blindlaw at nfbnet.org
> http://www.nfbnet.org/mailman/listinfo/blindlaw_nfbnet.org
> To unsubscribe, change your list options or get your account info for 
> blindlaw:
> http://www.nfbnet.org/mailman/options/blindlaw_nfbnet.org/stone_troll%40sbcglobal.net 