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

Sat Jan 3 15:50:57 UTC 2009

Am I understanding correctly, that a person with contact lenses is 
considered disabled?

----- Original Message ----- 
From: <ckrugman at sbcglobal.net>
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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
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> <<adaaa1.url>>
>
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