The ADA Amendment Act of 2008 and the EEOC Notice of Proposed Rulemaking
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The ADA Amendment Act of 2008 and the EEOC Notice of Proposed Rulemaking


Today’s roundtable is
the latest offering in PLR’s Employee and Labor
Relations Roundtable Series. PLR presents the roundtables in
support of our ongoing effort to bring relevant… relevant and reliable
development opportunities to federal sector employee and
labor relations practitioners. In your packet, you fill find biographies
of today’s presenters, the PowerPoint presentation
and an evaluation form. Please take time to complete
the evaluation form before you leave today. Your feedback is
important to us. We’re pleased to
have as presenters, Christopher Kuczynski and Joyce
Walker-Jones from the EEOC, the agency responsible for implementing the
ADA Amendments Act. Today’s presenters bring
outstanding credentials and experience to our
roundtable topic. Christopher Kuczynski is
Assistant Legal Counsel and Director of the Americans
with Disabilities Act and Genetic Information
Non-Discrimination Act Policy Division, at the Equal Employment
Opportunity Commission. He serves the development
of a… he sorry, he supervises the development of
regulations and policy guidance on provisions of the
ADAAA and GINA. Chris has a wealth
of experience in non-discrimination issues and
has presented extensively on our topic for today. Joyce Walker-Jones; Ms. Jones is Senior
Attorney Advisor also in ADA/GINA
Policy Division. Joyce has been the principal
drafter of several ADA guidances and a member of
various presidential and interagency ADA taskforce. Like Chris she conducts training and provides guidance
to federal government, state agencies and
disability rights advocates, on Title I of ADA and
Title II of GINA. Please join me in welcoming
Christopher Kuczynski and Joyce Walker-Jones. [Applause] Well, thank you
very much Sharon. I am going to start the
presentation this afternoon. We have about 27, 28
slides to present on the ADA Amendments Act and the EEOC’s
Notice of Proposed Rule Making. Sometimes I’ll refer to the
NPRM or the proposed rule to implement the
ADA Amendments Act. And Joyce and I, to keep
the conversation lively, to keep you interested, each of us will take a
portion of this presentation. We’ll alternate back and forth
on the various topic areas. Before we move to the
first slide that talks about the
ADA Amendments Act, I want to give a sense because I’m asked at
every presentation I do on the ADA Amendments Act to
date when will there by a final when will there be
final regulations to implement the
ADA Amendments Act? And although I don’t have
a specific date for you, I can’t predict exactly when those regulations
will be issued, I can give you a
little bit of a sense of what the process is like, where we are in the process, and where we need to go before
a final set of regulations can be published in
the federal register. The EEOC issued a Notice
of Proposed Rule Making or NPRM on the ADA Amendments
Act last September 23rd, so September 23rd,
actually 2009. So, it’s been out for
a bit over a year, about 15 months now. We received in the
60-day comment period, following issuance of the NPRM, approximately 650 comments
from individuals, from organizations
representing employers and from organizations
or advocacy groups representing individuals
with disabilities. We also, during the
60-day comment period, conducted four town hall
listening sessions in Philadelphia, Chicago, New Orleans and I’m… for a second blanking on the fourth of the town
hall meetings but throughout, oh and say…
Oakland, to try to get… so representative sampling
from across the country of comments on the
proposed rule. At those town hall
listening sessions, people were able to come forward either by telephone
or usually in person to provide comments
on the proposed rule. Many of the commenters
also followed up with formal written comments that were part of the comment, the 650 written
comments we received, but we took into account
both the written… 650 or so written
comments that we received and the comments conveyed
at the town hall listening sessions in revising, going about the
process of revising the proposed rule to draft
a final set of regulations. Now those… much of that drafting and
revising was done in the office that… I work for the
Office of Legal Counsel, but the… the final regulations
have not yet been approved by the commission. During the time,
between the time that the proposed rule
was issued and now, there had been changes in the
composition of the commission, most notably in late March or
early April of this year, we had a new chair appointed
and two new commissioners. And so they are very
carefully deliberating on the topic of the
final regulations and they will need to vote
on final regulations before those regulations can then go to the Office
of Management and Budget. There is an executive
order 12866 under which the Office of
Management and Budget would review and hopefully ultimately clear the final regulations voted
on by the commission. Under executive order 12866, OMB has up to 90 days, it could be a shorter
period of time, but up to 90 days to review
the final regulations as approved by the
commission before… and clear them before they
can be published as a… final regulations in
the federal register. So we have a little bit
of work still to do before our final
regulations can get out because we still need to have the commission vote
on those regulations and then we need to go through
the OMB clearance process. So that’s… obviously
we are working to do that just as quickly as possible. What I would say in the
meantime is that as you’ll see from discussion of
a couple of cases, the courts that have had
occasion to decide cases under the ADA Amendments
Act to date have begun to use the Notice of Proposed
Rule Making from the EEOC as a guide in resolving
issues concerning the definition of disability
under the Amendments Act. And I would say it’s a
safe path that until final regulations come out
that you can look to what’s in the proposed
rule for guidance in trying to determine,
well how are we going to… what’s the best way to implement
the ADA Amendments Act in my agency because the ADA
Amendments Act does apply fully to Federal agencies
through the Rehabilitation Act. So agencies are required
to comply with it and have been since
January 1, 2009. What’s the best
way to do that? Well the commission’s… the most current
publically stated position of the commission is embodied in the Notice
of Proposed Rule Making and we’ve seen courts
start to use that, and I think it’s a good guide
until final regulations are out to look to that proposed rule and we’ll be talking about
that in some detail. I will also be giving a
sense, both of us will, as we go through
the presentation, of areas where we received
a lot of public comments and what was said in
the public comments. That would… that will
probably give you an idea of the most important
issues that the commission has to consider before
voting on final regulations. Let’s turn to the first slide, and the first few slides
are going to deal specifically with
things in the statute. Congress gave us fairly explicit
direction in the statute. Obviously there is
more clarification that we’re attempting to do
through the regulations, but Congress gave us a
fairly specific direction in the statute about
what it intended to do when it passed the
ADA Amendments Act and how the law should be
interpreted with respect, particularly to the
definition of disability. This is a statute that applies
to all parts of the ADA not just to the parts
concerning employment. So it applies to the
parts of the ADA that deal with state
and local programs and activities of state
and local governments also to… it applies to places of
public accommodation, it applies obviously to non
employment programs and activities that the
federal government either conducts itself or funds. So it applies to a lot of things other than just employment
discrimination, but the fact is that
Congress was most concerned with what had happened under
the ADA when the courts were interpreting Title I of the
ADA having to do with employment because it was really in
the employment provisions that defendants
vigorously challenged whether individuals were even
covered as having disabilities. And the courts rather
narrowly construed the definition of disability in the employment
context in particular and the Amendments Act, although it applies to
all parts of the ADA and the Rehabilitation Act that
deal with non discrimination, is much of it is about what was
going in the employment context. So, the first slide represents some of the goals of
the ADA Amendments Act as stated by Congress, one of which was in
Congress’ view to get back to where a law on the definition of the
disability was prior to interpretation of the
ADA by the courts and particularly the Supreme
Court in three or four decisions that the statute
notes specifically. Prior to the ADA Amendments Act, the definition of
disability was, according to Congress,
construed rather broadly and it pointed to
over and over again to a decision called
Arline versus Nassua County, or Nassau County versus Arline. It has been… come to be known
as the Arline decision, which interpreted
the term ‘handicap.’ It was the term we used to use under Section 504 of the
Rehabilitation Act very broadly. There were a number of cases
under the Rehabilitation Act prior to the ADA in which
entities who were being… against whom
complaints were filed were not really challenging the definition of
disability very much, the cases were
focusing on issues of well was there a
reasonable accommodation that was available? Did the person pose
a direct threat? Was the person qualified
for the position in the sense of being able to do the essential
functions of the job with or without
reasonable accommodation? But rather a little focus on did
the person have the disability? And one of the
things Congress said is that it wanted to get
back to the place in the law where disability was not the
primary focus of cases. And to the extent that it
was the focus in a case or it was challenged that the courts would
interpret it broadly in a way consistent with the
way the Supreme Court did in Nassau County versus Arline
under the Rehabilitation Act. Some of the other things
Congress sought to do were to specifically
overrule certain cases that the Supreme Court had
decided in the late 1990s and the early 2000s concerning
the definition of disability. One of those cases
or sets of cases, there are actually
three related cases, has been come to be known
as the Sutton Trilogy, Sutton versus United Airlines, Murphy versus United
Parcel Service, and Albertsons
versus Kirkingburg and all three of these cases were cases that took
a different position from what the EEOC did on the
issue of mitigating measures, if somebody uses medication, if they use assisted devices, if they use something to lessen
the effects of their impairment. The EEOC’s position had been, we don’t take those
things into account when we determine whether
the person has a disability. As one disability
advocate has put it, that the idea was to look at
people with disabilities in their natural,
in their natural state. So you would look at the
person with epilepsy, what would the person’s
condition be like without the benefit
of medication? Somebody with diabetes
what would the condition be like without the
benefit of insulin and if, without those
mitigating measures, the person
would be substantially limited in a major life activity, the person would
have a disability. Much… you can see how
that would create rather broad coverage
of a number of impairments for which people use
mitigating measures, the Supreme Court
took a different view and it said we must consider the
effects of mitigating measures in determining whether
somebody has a disability and that meant that
we now have to look at what the person’s
limitation are like with their anti
seizure medication, or with their
insulin for diabetes, or with other types of
medication or assistive devices, the prosthetic limbs
that people use, how is the person’s
ability to walk affected if they are using
their prosthetic leg? So you can see that that
position on mitigating measures made it much more
difficult for individuals with impairments to establish that they had disabilities
within the meaning of the ADA. So the other thing that the
Sutton Trilogy of cases did, was it made it much
harder for people to prove that they were
‘regarded as’ disabled; that were treated by or
perceived by an employer as substantially limited
in a major life activity. So, that’s a part of
the Sutton Trilogy that sometime is forgotten that
it made the ”regarded as” prong of the definition of
disability very hard to meet. So Congress is saying we
are overruling these cases. They were wrongly decided
and we want to go back to the old rule of
mitigating measures and to a more straightforward
analysis of the ”regarded as” prong of the definition
of disability. Another case they overruled
was Toyota versus… a case called Toyota
versus Williams and this was a case that said that in order to
have a disability somebody has to be severally
restricted in the ability to perform a major life activity and that the ADA establishes
a demanding standard for determining
who has a disability. Well, ‘severely restricted’ was not the term
that the EEOC used, we said that substantially
limited under the ADA in defining disability could
mean significantly restricted. ‘Severely restricted,’ at first when I read
the case, I thought well, that’s just
a synonym for… they don’t mean… they mean the
same things significant, severe, but in fact courts
after the Toyota case really construe that case as setting up a much
more difficult standard to meet for
establishing disability than even had existed before. The other part of
the Toyota decision that made it very difficult for
people to establish disability is that the Supreme Court said
this is a demanding standard. It’s a hard to
meet standard. It’s not a broad standard like the standard we saw
under the Rehabilitation Act prior to the ADA. So Congress is overruling
this decision in Toyota and saying no when looking
at the definition of disability, it doesn’t mean that the person
has to be severely restricted and it doesn’t mean… it’s not supposed to be a
demanding standard, it’s supposed to be
construed broadly. And finally another important
thing that Congress did is it said that the
EEOC’s regulation, defining disability
as a significantly restricted. Substantially limited we said means that someone is prevented
or significantly restricted from performing a
major life activity. Congress said that’s too broad
or that’s too narrow as well, that’s too difficult, too high a standard
for people to meet. And so it expressed, Congress expressed
its expectation that EEOC would
change its regulation defining disability to
reflect a lower standard and an easier to meet standard than the significantly
restricted standard. Now the next slide shows us
the definition of disability that is in the
ADA Amendments Act and if you look at that
definition an impairment, mental or physical impairment that substantially limits
a major life activity, having a record of
such an impairment, or being ‘regarded as’
having such an impairment, it may look very familiar to
you if you have been practicing in this area for a long time or done a lot of work under
the Rehabilitation Act, that is the definition
of disability that has existed for many years
under the Rehabilitation Act, that existed under the ADA,
beginning in 1990 and that basic
definition didn’t change. Why didn’t it change when
Congress intended to have a broader definition
of disability? One reason was because this
was compromised legislation that the business and disability
communities worked on together and they went to
Congress and said we both agree on
this legislation, we think it’s a good
idea and one of the… and the results of
the compromised nature of the legislation is that everybody got a little something
out of the compromised deal. And one of the things that
the business community wanted was the same three… basic three part
definition of disability with these terms
substantially limited and major life
activities included because there was legislation that had been proposed
before the ADA Amendments Act called the ADA Restoration Act, which said that a disability is basically any impairment
that someone has. And the business community
thought that is too broad, we don’t mind a broader
standard for disability, but we think that making
any impairment a disability is too broad. And so they wanted this
basic three part definition, but as you see
there at the bottom the meaning of these
of terms exchanged and that changed meaning is a lot of what we are
going to be talking about. Now the next slide includes a
number of rules of construction that Congress has given us for how to construe the
definition of disability. Again, much more detail
in this legislation than in the original ADA on how to interpret
the definition of disability. Over and over we see
things like disability is to be construed broadly and should not demand
extensive analysis. Elsewhere Congress says
in this statute itself that the primary focus in
a case involving the ADA or the Rehabilitation
Act should be on whether
discrimination occurred and not whether the person meets
the definition of disability. So the focus should be
on discrimination, should be construed broadly, should not demand
extensive analysis that is don’t spend a
lot of time on this. Other rules that
are very important is that the concept of a
major life activity includes major bodily functions,
that’s a new concept. Some courts were beginning
to recognize this under the old ADA, but Congress has
really expanded the meaning of major
bodily functions as major life activities. Mitigating measures
shall not be considered in determining whether
somebody has a disability, impairments that are
episodic or in remission can be disabilities, if they would be substantially
limiting when active and the ”regarded as”
definition has… essentially the meaning of it has been almost
completely rewritten. So these are some of
the basic concepts that come right out of
the statute itself. Now the next slide is
going to turn a little bit to the content of the
notice or the NPRM or the Notice of
Proposed Rule Making. We have set to work on
trying to figure out what does this new definition of
substantially limits look like and what we did is we didn’t attempt to try
to provide another term to serve as a
synonym for substantially limits because when we tried
to do that before and used the term
‘significantly restricts,’ Congress told us, no, that it’s too difficult a
standard for people to meet, it’s too high a standard. So, and then we noticed
that well Congress hasn’t really given
us any direction, hasn’t given us another word to define what
substantially limits means. Congress in one version of the
bill in the house had said substantially limits means
materially restricts, but by the time the
bill got to the senate and it was the senate version
of the ADA Amendments Act that ultimately passed this law, they took out the term
‘materially restricts’ and said that it didn’t really
provide any additional guidance on what ‘substantially
limits’ means and it was really… that providing another term was
encouraging courts to again go into this kind of
detailed analysis of who has a disability that we were trying to
avoid in the first place. So in the regulations
or in the proposed rule itself we say what
essentially what Congress says that an impairment
is a disability under the first part
of the definition, we’ll call it an
actual disability as sort of a shorthand, but it’s a definition… it is a disability if the impairment substantially
limits a major life activity and to substantially limit
a major life activity… and the substantial
limitation is as compared to most people in
the general population. So an impairment is disability if it’s substantially
limits a major life activity as compared to most people
in the general population. Secondly in order to be
substantially limiting, the impairment need
not prevent or severely or significantly restrict
a major life activity. So there we convey the notion that those standards
are too high, which is what Congress said,
it’s a lower threshold… ‘substantially limits’
is a lower threshold that neither prevents severely
or significantly restricts. We use the term ‘most people’ as the group to compare a
person with the disability to, to mean most people in the
general population. It basically means the same as
what the term ‘average person’ in the general population meant in our 1991 regulations, but the reason we
substituted ‘most people’ is it sort of had
a more commonsense appeal to it and looked less like a term that required some sort
of mathematical precision to try to find out, you know who from a
mathematical standpoint is the average person. That’s not ever what
Congress intended, that’s never what we intended when we use the term
‘average person,’ so we substitute the
term ‘most people.’ And then the thing
that we try to do since we don’t provide a synonym for what
‘substantially limits’ means, we try to provide
a number of examples throughout the proposed
rule to illustrate when an individual
might or might not be substantially limited in
a major life activity. Now before moving
on from this slide, I want to give a sense of
what some of the comments are and the most significant
comments we got about this part of
the proposed rule. Some people said, “You ought to provide
an affirmative definition of what ‘substantially
limits’ means. You should do more than
just say what does it mean.” Well, I think I’ve
responded partly to that. One of the reasons was that
Congress didn’t give us another definition
that we could use and in fact rejected
ultimately the only one that was proposed
‘materially restricts’ as just encouraging
too much analysis, and secondly we thought
the examples were really sufficient to
respond to the question of what a substantial
limitation really means. The other issue that came
up in the comments was some commenters on
both the employer side and representing individuals
with disabilities said, “You know you ought
to use the terms ‘condition, manner or duration’ to serve as ways of
determining whether somebody is substantially limited
in a major life activity.” We used to say that somebody had
to be significantly restricted in a conditioned
manner or duration under which they can perform
a major life activity. We deleted the terms
‘condition, manner, or duration’ from this proposed rule
in part as we explain, we thought that they would
be again used as a rigid three-part test that
courts would always do, that they encourage courts
to do too much analysis in… of the definition of disability. Many commenters on both sides, employers and individuals
with disabilities, said we think that
these terms are helpful. They can be helpful in
some cases at least to… as a way of explaining
the kinds of things that people should look at, that employers can look at, that administrative agencies
enforcing the law can look at and the courts can look at when determining whether somebody
is substantially limited. So, although I don’t know
whether the final rule would put back in the words, ‘condition,
manner, or duration,’ this was an area where we
did get a number of comments that were supportive
of using those terms. Next; major life activities;
Major life activities we said in 1991 are
those basic activities that most people can perform
with little or no difficulty. Other, you know,
courts have said that the touchdown
of determining whether something
is a major life activity is whether it’s important, is it important? It doesn’t necessarily have
to be important to daily life. The Supreme Court
recognized reproduction as a major life activity in a
case involving someone who is HIV positive, but asymptomatic in a case called Bragdon
versus Abbott from 1998, but it has to be an
activity that’s important. In that first group of
major life activities, I’ll call those sort of traditional
major life activities, the ones that we’re
kind of used to that we’ve seen under the ADA
and the Rehabilitation Act, that courts have largely
recognized sitting, standing, performing manual tasks, you know, walking, seeing, hearing, speaking, breathing, most of the ones that
you see in the first group are things that
EEOC has recognized in its regulations or in
enforcement guidance documents. There are three that
Congress recognized that EOC had not
specifically recognized, which were bending,
reading and communicating. So they are included
in the proposed rule and then in the proposed rule we
included three other examples, reaching, sitting,
and interacting with others that are activities that
we have traditionally recognized as major life activities that by and large
courts have recognized, but the Congress didn’t
specifically list. Now the reason that we
could put them in, we thought is because
Congress gave us an non-exhaustive list of
major life activities that said major life activities
include these things, aren’t necessarily
limited to those. So we added these further three
examples in the first grouping and we also made the point that even this list is
a non-exhaustive list of major life activities. Now the area where the
ADA Amendments Act makes a significant change, I think with respect to
major life activities is with respect to
the second group. Major bodily functions are included as major
life activities. I won’t go through all of them, but you know functions
of the immune system, normal cell growth, neurological, brain,
bowel, bladder, respiratory functions, endocrine functions, reproductive functions. We added about
five or six others, some of the ones
that we added are to make the proposed rules definition of major
bodily functions consistent with our definition earlier in the
regulations of impairment, musculoskeletal functions, genitourinary functions, hemic lymphatic functions and a couple of others are ones that we added as examples
of major bodily functions. This is going to
make it a lot easier for people with lots of
different kinds of impairments to establish disability. People with HIV for example used to have to try
to strain to demonstrate that they were
substantially limited in activities like reproduction,
because that’s the activity that was identified in
Bragdon versus Abbott case. Now they’re going
to probably look through functions of
the immune system, functions of immune system. People with cancer who
had a very difficult time demonstrating disability
are going to be able a point to normal cell growth as
being the major life activity that’s limited
as a result of cancer. Persons with diabetes,
endocrine functions are going to be a very important
major bodily function for them in establishing disability. Neurological
and brain functions are going to be important
to persons for example with epilepsy, with cerebral palsy, Parkinson’s disease. You can see that
the second grouping of major bodily function is going to be very,
very important for people to much more easily establish
the existence of the disability. The next slide
just shows a case in which this has… in which
one court has already done this. This was a case
Horgan versus Simmons in which someone alleged he
was terminated from his job as a general manager
for the company because he was HIV positive. I won’t go into
all of the facts. For our purposes what’s
really relevant here is, first of all
what’s relevant is that the employer
challenged this person as having the disability. So I think what that
tells us is that as much as the ADA Amendments
Act is trying to get away from challenges to the
definition of disability, it’s not going to
happen that easily. Employers are probably still
going to continue to challenge whether somebody
has a disability until a case law develops
more reliably establishing that certain kinds of
impairments are covered. If that happens then
employers may be more reluctant to
challenge disability, but here that… employer
is challenging disability that has really
for a longtime… an impairment that for a
longtime by a number of courts has been recognized
as a disability, HIV. The District Court
in this case… the case was not
finally resolved the… it was at a stage
in the litigation were the only question was, is there enough on the face
of the person’s complaint that it can go the next step and
go to the process of discovery and ultimately trial or is this a complaint
that is so deficient on its face that the case should
be thrown out of court before any of the
facts are developed and the court said, no,
this case can go forward. There is sufficient… the complaint
sufficiently pleads that this person has
a disability and it points to functions
of the immune system as being important
in establishing that HIV may be a disability and it’s also important
because this case, in order to support
its conclusion, points to the EEOC’s Notice
of Proposed Rule Making and particular language, that we’ll talk about
in a little while, which talks about HIV
as an impairment that will consistently meet
the definition of disability. So in this case, this… one of the first of the ADA
Amendments Act cases we see courts beginning to look to the Notice of Proposed
Rule Making for some guidance. With that I’m going to
hand it over to Joyce to start talking about
mitigating measures and some conditions that are
episodic and in remission. Before I do that, are there any questions
from the audience here or maybe those who
are listening in, on what Chris has
already talked about? No, okay. As Chris said earlier
in his introduction what Congress was
trying to remedy was how restrictive the
definition of disability had become and in the Sutton trilogy
a lot of that emphasis was on mitigating measures and whether or not they
should be taken to account in determining whether or
not somebody had a disability. And as he also said in 1991… our 1991 regs we had said no, that you look at the person without the effect of
mitigating measures. You look at the
person as Chris said, in his or her natural state, but the Supreme Court said
in the Sutton trilogy that… and a lot of that had to do with
the preamble to the original ADA about how many people
had disabilities and they focused on that, there
were 43 million Americans and so the Justices looked
at that number and said well that number
would be a lot bigger if you only looked at… if you looked at people
without mitigating measures. So of course they said
that the Congress’ intent must have been that
you look at… you take into effect mitigating
measures when determining whether or not somebody had a
disability and as lawyers say, you know bad cases make bad law and the first case they
looked at, as Chris said, was Sutton versus
United Airlines, which was about twin sisters who wanted to be
commercial airline pilots, but they could not meet United’s
qualifications standards, their requirement for vision. And they had vision
that could be their… their vision… their
eyesight could be corrected with contact lenses or
glasses and the courts said, well, Congress clearly didn’t
intend to cover everyone who wears you know eye
glasses or contact lenses. So they said, well when
you are looking at whether or not somebody
has a disability, you take in mitigating measures such as eye glasses
and contact lenses. Well, the ADA Amendments
Act says no… well, let me back up a little, the next case in that trilogy looked at people
who use medication, someone who have had
hypertension and used medication and… but with his
medication his hypertension was still not normal, but not extraordinarily high. And then the third case was
someone who had monocular vision and… which, you know,
meaning that he couldn’t… he only could see out of one eye which meant that his peripheral
vision was severely affected, but because… but his brain had made
sort of adaptive changes. So the courts said well we’ve
already decided in Sutton, we already say that you take
into effect mitigating measures, so we are going to
apply the same rule whether it’s medication
or adaptive behaviors. And what… and so of
course as Chris said that really limited
the number of people who could meet the
definition of disability. So what the ADA Amendments
Act says is, no when you are looking at whether
or not somebody has a disability you do not take into account
the ameliorative effects of mitigating measures in determining whether or not
somebody has a disability that… an individual’s
disability if its impairment would substantially limit
a major life activity without the benefit of
the mitigating measure. They did make an exception
for eyeglasses and sunglasses.. eyeglasses and contact lenses, which I’ll talk
about in a minute. So what are some of
the examples of… sorry, I did miss the slide, what are some of the examples
of mitigating measures? Medication as I said, medical supplies
such as equipment or appliances, low vision devices, prosthetic limbs, hearing aids, it’s also assistive technology, it’s reasonable accommodations, auxiliary aids a person
maybe receiving or using, learned behavior or adaptive
neurological modifications, and the NPRM also mentions
surgical interventions, we’ll talk about a little
bit more in detail. So most of the
mitigating measures are ones that you’re
familiar with, but some of the commenters, some of the organizations
representing individuals with disabilities also suggested that we add more examples
of mitigating measures such as job coaches,
service animals, personal assistant,
psychotherapy and other human
mediated treatments and some specific
devices used by persons with hearing impairments
or vision impairments. Some other commenters said that we add
examples of mitigating measures that are also
reasonable combination such as the right to
use a service animal or a job coach in the workplace, but the list is non-exhaustive just as it is with
major life activities. So the fact that you know
the NPRM did not mention every possible mitigating
measure does not mean that those that are not listed, you know, should be taken into
consideration either with… certainly with technology
you know there… and advances in medicine, there are all kinds of
medications as you look at TV, you know, that they are
all kinds of medications being developed all the time to address various
medical conditions. So it’s not possible for us to
list every possible medication, or to think of every
possible medication, or every possible
mitigating measure. Some commenters asked
for a clear statement as to whether or not the
non-ameliorative effects of mitigating measures
maybe considered in determining whether a person
is substantially limited, but we think in most instances this won’t be necessary because for example
a person with diabetes, now that you have the second
list of major life activity, the list includes major
bodily functions, we think that a
person with diabetes is going to have less
difficulty in showing that he or she is a
person with a disability because you’ll look at the
effect of the diabetes on endocrine system. So you won’t have to look at whether or not the
person has to, you know, regulate how often
or what he or she eats or how often he’s
most moderate to, you know, the glucose levels. So we think that the, as Chris said, that there
will be a lot more emphasis on this second list of
major bodily functions, which will make it unnecessary to consider the non-ameliorative
effects of major life activity. As I said, we included
in the list of… I think it’s too far, okay, as I said we included in the
NPRM surgical interventions except for those that permanently
eliminate an impairment, so numerous comments were made about this proposed inclusion
of surgical inventions. Some commenters ask us to delete
their reference entirely, others want us to
delete the qualification that it only apply to
surgical interventions that permanently
eliminate an impairment. Some comments… commenters
proposed language that’d exclude for
mitigation measures, those surgical interventions that substantially
correct an impairment rather than
permanently eliminate and some commenters
endorse the definition as written but suggested that we provide examples
of surgical interventions that would permanently
eliminate an impairment. So I can’t tell you, you know, what the final rule, but we have looked at that so it’s possible that we
may come up with some examples, or make suggestions, or you
know give examples to… for more clarity on the kind
of surgical interventions that should not be included. Chris, you want to say
anything more about that? No, I’ve… I think that… I think the rationale for taking
the position that we did was that if something completely
eliminates an impairment then unlike any other kind
of mitigating measure, the impairment… most mitigating
measures function by controlling an impairment, but the impairment remains, the mitigating measure
controls their effects. If a surgical intervention
completely eliminates an impairment there is arguably
at least no impairment. Therefore, there is no…
there would be no coverage under the first or second part
of the definition of disability, so that’s a little bit
of background as to what was going on there with
that particular qualification, but as Joyce said it’s an issue
that we’re still looking at. And I think it’ll be
particularly interesting how courts look at it in
terms of certain conditions like cancer, which Chris
will talk about later, is included in the
list of impairments that will consistently meet the
definition of disability. And it also is important
when you talk about conditions that are
episodic or in remission, but you know more and more
you’re seeing some… at least some medical
studies that are saying that some cancers with
surgery are cured. Doctors are still kind of
hesitant in saying that, but there are… there
are some certain cancers I think there was an
article recently… testicular cancer that is caught
really early can be cured. There are certain skin cancers that you know they
feel pretty confident if they’re caught
pretty early, cured. You know there are other
cancers like cervical cancer, if it’s caught… so it’ll be interesting
to see whether or not… and there have been some
arguments in the district court, you know, employers have said well the person no
longer has impairment because the cancer is you know
has been completely removed, so the impairment is gone. So there is no, you know there
is no major bodily function, there is no more
abnormal cell growth so the person doesn’t
have the disability. And I think it’ll be more you
know as case law develops it’ll be interesting to see whether or not they focus on… whether or not someone who’s only six months away from
the time he had a surgery, if that person is
considered you know cured or do we have to look at
a longer period of time. So say that someone had
you know a mole removed, a cancerous mole removed ten
years ago and there is no… there has been no recurrence, is that a condition that you
know it’s no longer disability or is it condition that
can still be considered you know episodic
or in remission? So let’s go in now
to talk about, I said you know that the… the Congress said that… realized that ordinary eye
glasses or contact lenses should be treated differently
than other mitigating measures such as medication or
assistive devices or reasonable accommodation. So what Congress
says in the ADA… the statute explicitly says is
that the ameliorative effects of ordinary eye glasses
or contact lenses shall be considered in
determining disability. And the statutory
definition is that lenses that are intended to fully
correct visual acuity or eliminate refractive error, that’s what they meant by ordinary eye glasses or
contact lenses and that’s… and
they distinguish those devices from low division devices defined in the
statute as devices that magnify, enhance, or otherwise
augment a visual image. We got… some comments
on that provision as some commenters asked for
more precise definition of the statutory term, ordinary eye glasses,
contact lenses. For example one commenter
proposed that fully corrected should mean visual
acuity of 20/20, another commenter
representing HR professional suggested a rule
that any glasses that can be obtained from a
walk-in retail eye clinic would be considered ordinary
eye glasses or contact lenses including bifocal and
multifocal lenses, but the NPRM we
think makes clear that the distinction isn’t
really where you buy them or… but rather how they function. So ordinary eye glasses
and contact lenses on
one hand versus low devices… low vision devices on the other is not how they look or where they can be purchased
but how they function. Excuse me. Yes. I have a question about the negative
effects of mitigating measures. Could you talk about that, when they can be considered as
a part of the disability? As I said that we…
we think that in most instances, it won’t be necessary to
consider the negative effects of mitigating measure. There are obviously some
mitigating measures such medications, there are people who take
medications for epilepsy where it controls the seizures, but it creates other symptoms you know either with their sleep
patterns or eating patterns. There are other medications
for some mental impairment that affect… they may control moods
but create problems with the person either
sleeping too much or not being able to
sleep at all, but we… I think
the focus should be on whether or not the
person has an impairment that substantially limits
a major life activity. So the first function
should be… first enquiry should be whether
or not they have an impairment that effects either… Chris talked about the
list of impairments that we ordinarily think
about like eating and sleeping and the whole list
that’s included in the statute and you know activities
are not precisely or specifically included but that we think are
major life activities or more importantly
whether or not they have a limitation
of a major bodily function? So lot of the times, particularly after the Supreme
Court decided that you… you know, you have to look
at mitigating measures, we were forced to look
at the negative effects and we had a lot of success
with the diabetes cases where we had to look at
whether or not persons who is substantially limited in
major life activity with the… even though they had, you
know, use insulin or medication, well… so we have
to look at well, are they limited… you know are there
some other effects that they’re still experiencing. And so we looked at for
example like diabetes that people with diabetes
did have to look at… did have to really focus
on how they ate… you know how much they ate and
monitoring their glucose levels and the same thing
with epilepsy, but now that we don’t
have to consider that and we do have that list of
major bodily functions, I think we won’t have to get too
much of the negative effects, but I’ll let Chris add. The only thing that I would add, and I wholeheartedly
agree with that, that should not be the focus
of coverage any longer. The one thing I would
point out is that negative effects of mitigating
measures maybe relevant to whether a person needs a
reasonable accommodation. So it maybe that the focus
of that issue gets pushed from the issue of coverage to the issue of
whether accommodation is needed and an example to just continue the thread of the
discussion about diabetes, someone who has diabetes without
the benefit of the insulin, we can probably show it’s going
to be substantially limited in endocrine functions. I feel pretty safe saying that. So much so that, that’s one of the things
that we say consistently we think will meet the
definition of disability, but there are
negative side effects of keeping that
condition under control and one of them is that the person may have
to be very vigilant about timing insulin shots if they are taking injections and monitoring their insulin
and blood sugar levels and having to take a
break to eat something if their insulin
level gets too high. You know this process of
monitoring and eating properly and adhering to a
often strict regimen to keep the condition
under control, that we use to say was
relevant to coverage, that now maybe relevant to
reasonable accommodation because why, the person
may need a break to do the monitoring or may need an
exception to a rule that prohibits employees from
having food at their desks, if the person needs
to have something in the event of the blood… the
insulin levels get too high. So the negative consequences
will probably be most important in that sense and as something that may
need to be accommodated, not primarily as a
matter of coverage. Okay, the next slide talks about conditions that are
episodic or in remission and again this was
a huge problem before the Amendments Act because a lot of times
employers and certainly courts, looked at whether or not
the person was you know particularly with request for
reasonable accommodations, were they are experiencing
any substantial limitations at the time that they
made their request. And so made it really
difficult for somebody who had an episodic
condition to show that that he was intended to
be covered by the ADA even when he wasn’t
experiencing limitations and there was testimony from
someone who had epilepsy who said, you know it
makes it appear that, you know sometimes
I have a disability and sometimes I don’t, so if I am experiencing
frequent seizures or going through a period where
I am experiencing seizures that I am covered, but when the seizures are
under control then I am not. And what the ADA
Amendment Act says that, an impairment that is episodic or in remission is a disability, if it would be substantially
limiting when active. So, again as I said, you know earlier because
you would look at, you know you don’t look
at mitigating measures when taking in effect and a lot
of times episodic conditions are kept pretty
much under control or sometimes completely
under the control with mitigating measures, but without the
mitigating measures you know people with epilepsy, people with other kinds
of episodic conditions, you know they do
experience flare-up. So, what the NPRM does is gives examples of those
kinds of impairments that are episodic
or in remission, and again this list
is not exhaustive; multiple sclerosis, epilepsy, bipolar disorder, and cancer. So, people now who have
episodic conditions as opposed to people
who have disabilities that are always present, so to speak generally
with vision impairments or hearing impairments or
people in wheel chairs, you know those are conditions
are pretty static. They are… the limitations
are evident daily, but there are other conditions
as I said that were, they are episodic. And even though we haven’t
seen a lot of case law yet under the ADA Amendments
Act there have been a few and one of them is a case
that’s in the slides and that’s Hoffman versus
Carefirst of Ft. Wayne and this is one of
the first cases to make it to the
summary judgment phase where they said that the
ADA standard was applicable and they also
looked to our NPRM. And in that case, you know
it’s about a plaintiff who had which would…
is interesting is that he had stage three renal cancer and generally when I think
sort of commonly people look at cancers that
are early stage, the ones I was saying that
maybe surgical intervention might have an effect and you can say the person no
longer had an impairment, in this case the person
has stage three renal cancer, he had surgery, he had one of his
kidneys removed and when he came to work and
he was working fine except… you know, he was
working 40 hours a week and the employer instituted
a new requirements saying that you know people are going
to have to work many more hours, I don’t know it’s 40 to
60 hours, 60 hours a week. And Hoffman said, no, you know, I really
don’t want to do that, you know because of my…
I just had a cancer I had, you know surgery, I feel more comfortable
I think it would be, you know, my doctors recommended
that I only worked 40 hours and the employer argued
that his cancer was, because this cancer
was in remission, it was not a disability. And, but the court found that
there was sufficient evidence of a trial noting
that conditions referring to the statute, the ADA Amendments Act that said that conditions that are
episodic or in remission can be disabilities if they
would be substantially limiting when active and it particularly
cited to the our EEOC, EEOC’s proposed rule and it said even though
the rule was in retroactive, of course we’ll talk
about a little later, it said it was useful
as another tool to glean the meaning
of the amendment. And again when I said, what I found particularly
interesting is that employer here was arguing that somebody
who has stage three cancer was not intended to
be covered by the ADA because he had had
surgery and in essence, you know was in remission, yet the court said, that
if that cancer came back and it would be likely
be active in that, it would mean that there
was abnormal cell growth and these are the
kind of individuals that Congress did
intend to cover that conditions
that are in remission such as cancer are intended to
be disabilities under the ADA. So, unless somebody
has questions here, probably it would be good
time, just glancing my watch, it’s almost 2:30 if you
want to take a break or you want to ask
questions that cover what both Chris and
I’ve talked about this would probably
be a good time. I have a question from someone who wants some clarification on when episodic
conditions are covered and they are saying that suppose someone has
an episodic condition that when active prevents them from performing the essential
functions of the position and the conditions is
active on a recurring basis or a significant
portion of the time, would they still be considered
a qualified individual with a disability. Well, that’s what I
was going to get into. I think that issue
isn’t whether or not the person’s condition
is a disability, I think, you know,
if it recurs frequently and is substantially
limiting when it recurs, this is the person
who has flare-ups, I don’t think that coverage
is really the issue. It is an issue of whether
a person is qualified and I think that you have to
do, you know an analysis, you would have to know
what the position is and what the essential
functions are, you know, whether
or not the person, how often the person is
unable to come to work. And a lot of times employers
raise that as an issue and say, well that person
is not qualified because they have flare-ups. So frequently, but a
lot of time it means that the person maybe can’t
physically come to the job site, but can continue to work. And so reasonable
accommodation may mean, you know, allowing the
person to work at home, it may mean allowing the
person to work part time. So the fact that somebody
has frequent flare-ups alone is not enough to say that
person isn’t qualified. The fact that the
person is taking, you know frequent leave
that maybe unanticipated because it’s you know unforeseen may go to whether or not
the person is qualified, but it could be again that
the person is taking leave because there hasn’t been a
discussion about other possible, you know, accommodations. The other thing is some
people have flare-ups that are pretty predictable, people who have
certain conditions that are episodic such as MS. You know they know that
they have flare-ups more in the winter time or
when it’s extremely hot. You know people with
certain mental impairment know that they have flare-ups
maybe more frequently when it’s,
you know it’s seasonal. So they tend to be you
know more depressed, you know in the winter months
and so those kinds of leave, you can sort of anticipate
and they can anticipate what kind of
reasonable accommodations and when they’ll need
those accommodations. So I guess my biggest
thing is a caution that employers should not
just assume that because somebody has
an episodic condition and now that it’s covered by the
ADA that they are going to have, you know, have to
deal with more, more issues in terms of
managing the workforce. The other thing is that even before the ADA people were
working with episodic conditions and not requesting any
kind of accommodations. You know, they are
people who have MS, who work, who haven’t asked
for any accommodation, they are people
who have epilepsy, who have, hasn’t asked
for an accommodation. So you know the fact that
more people maybe covered doesn’t necessarily mean that there are going to be more
request for accommodation, but to the extent
that there are, then employer should look
at those accommodation before determining that is
a person is not qualified. You want to add
to that question, okay, Chris says it’s fine. I have to ask him because
he is my supervisor, so. Okay. My discussion of what the NPRM says about
‘substantially limits’ that we didn’t provide an affirmative
definition of that term like ‘materially restricts,’ but instead we tried to, we first of all specified
what the term does not mean and said that it’s
lower than prevent severely or significantly
restricts and then I say we provided
a lot of examples throughout the NPRM. And here on
this next slide is one area where we provided
examples that try to illustrate how the substantial…
new ‘substantially limits,’ new concept of
‘substantially limits’ works as the result of
ADA Amendments Act. This is and Joyce alluded
to the (j) (5) list and that’s because the part of the regulation
that we were amending is a 29 CFR 1630.2, that is a 1630.2 are
definitions of various terms and J is the definition
of ‘substantially limits’ that was from the original ADA
regulations, it was 16.30.2 (j) and (5) is now the,
a new sub paragraph at least in the proposal where we put these
examples of impairments that will consistently meet
the definition of disability. Now, when we
put these in, we got a number of comments
from both employers and on behalf of individuals
with disabilities, they’re probably broke down in
ways that you could anticipate. A lot of the groups, representing individuals
with disabilities and individuals
with disabilities, commenting on their own, liked this concept
of impairments that consistently will meet
the definition of disability. A lot of employer
groups did not like it and said that what we
have constructed here is essentially
a per se list, an automatic list
of disabilities and they said that
is inconsistent with the idea that disability
is to be assessed individually, on an individualized
case by case basis and I just want to
say a few words about that particular comment, because it was something
that we had anticipated when we had put
forth these examples. The first thing I
would say about it is that we’ve always had, even under the previous
ADA or Rehabilitation Act, interpretation of
‘substantially limits.’ We’ve always
had impairments that consistently
meet the definition that consistently met the
definition of disability, that is… I don’t think
anyone would argue that someone who is deaf,
someone who is blind, someone who used a
wheelchair for mobility, would be a person
with a disability, would be substantially limited
even under the old definition and if you did an individualized
assessment of that person to determine that we would all admit that it
would be very quick, very easy, as one of my colleagues
would say, you know, it’s an individualized
assessment that’s done in a nanosecond. We can know from the very
nature of this impairment that the person is
substantially limited. What we are saying here is we think there are
other kinds of impairments that are also
consistently disabilities, when we take into account various rules of construction
under the ADA Amendments Act. When you consider
what Congress said, that the definition is
to be construed broadly without extensive analysis to the maximum extent
allowable under the ADA, people are to be considered
individuals with disabilities, when you take into account some of the rules we’ve
already talked about that major life activities
include major bodily functions, when you take into
account the fact that mitigating measures
have to be disregarded except for ordinary eye
glasses and contact lenses and the conditions
that are episodic or in remission
or disabilities if they are substantially
limited when active, take into account all of those
and apply all of those standards to these various
kinds of impairments and consistently you
are going to find that they are disabilities within the meaning
of the ADA as amended by the ADA
Amendments Act. That doesn’t mean that we don’t
do an individualized assessment. We… some commentators
pointed out that it can’t be that these are
consistently disabilities, because you have people
with these impairments who, that are… who are
limited in different ways, but not every impairment affects
the person in the same way. Well, that is true, but
that doesn’t mean that people who have
those impairments don’t consistently meet the
definition of disability. What it means is that
within that group of people who are substantially limited there are some people who
may have more limitations or different
limitations than others. So when you are, for example, considering
reasonable accommodation, what accommodation
somebody needs, there maybe some people
with diabetes or epilepsy who because of the or anyone of these other kinds
of conditions you see them, they are, just to mention
some of them autism, cancer, cerebral palsy,
diabetes, epilepsy, HIV AIDS, multiple sclerosis,
muscular dystrophy, and a number of psychiatric
disabilities, major depression, bi-polar disorder,
schizophrenia, obsessive-compulsive disorder,
post traumatic stress disorder, there are some people who
have those impairments who don’t need any kind
of accommodation at all or who need maybe a minimal
kind of accommodation, other people who have
the same impairments that manifest themselves
in different way, who need a different
kind of accommodation. So what we should be focusing
on I think is not whether, are these people covered as
individuals with disabilities, but what are
their limitations and what does that mean about the kinds of
accommodations they need because the only time we
are going to be looking really at whether somebody
is substantially limited in a major life activity or has a record of a
substantial limitation is when the person is asked
for a reasonable accommodation, because we’ll see that under
the new ”regarded as” prong, the employer, the issue with substantial
limitation doesn’t come up and whether the person
is substantially limited isn’t relevant and
”regarded as” claim, so the only time and
”regarded as” individuals can’t get reasonable
accommodation. So the only time we are
really going to focusing on whether somebody is
substantially limited or has a record of, is when they are asking for
some kind of accommodation and the focus in
those kind of cases should really not so
much be on coverage, but what are the person’s
limitations and does the person, has the person
demonstrated by virtue of those limitations
and the nature of the job that he or she needs the
reasonable accommodation. So I think this…
these examples have the beneficial
effect of taking a lot of the emphasis
off of the converge issue in accommodation situations and focusing on where
it really belongs. Does the person need
an accommodation, if so what’s appropriate,
what’s effective and what can be provided
without undue hardship, if undue hardship is an issue. Now let’s look at
the next slide; we had in the following
subparagraph (j) (6), we talked about
some impairments that maybe disabilities for some
people, but not for others and as you can guess
there were comments… significant
comments on this. The employers actually said, don’t have this either, just don’t have any either (j) (5) or (j)
(6) grouping of things, just evaluate each
impairment individually on a case by case basis. The disability community said,
we don’t like this particularly, we love the first grouping, don’t particularly
like this one, because it makes it look as if
there is some disabilities, the (j) (5) disabilities that are more important
than some of the things that she mentioned
as examples of things that maybe disabilities for
some people but not for others and we don’t like this sort
of hierarchy of disabilities that you seem to
be establishing. That wasn’t the
intent here. These were just
examples of things that we thought
would probably require a little bit more
analysis, not extensive analysis because we are not supposed
to do extensive analysis according to Congress, but might require a
little bit more analysis and we try to provide
guidance on some of the things that we think might be relevant
facts in determining whether something is
substantially limiting. One of the facts might be, is
more effort required to do it for the person claiming
they have a disability? Does it take the person
more time to do it? Is it harder? Is there more difficulty
involved in doing it? Is a major bodily
function affected? Does the major bodily
function have difficulty or as you know is there, does a person have
difficulty performing a major bodily function? Is… is there
pain experienced in performing the
major bodily function? How long or… in performing
the major life activity, how long can the major life
activity at issue be performed? All of these things
maybe relevant effort, difficulty, time spent,
time that it takes and time that one can
perform the activity, pain experienced when
performing the activity, all of these are facts
that might be relevant in determining whether somebody
is ‘substantially limited.’ And in another point
that we try to make here was don’t judge whether
somebody has a disability by virtue simply
of the outcome the person is
able to achieve and this happens a lot, people
with learning disabilities. They threw many of, many of
the persons with learning, many persons with
learning disabilities may by investing a great
deal of effort and time in something that other
people don’t have to spend can accomplish things, they can achieve a high
level of academic success, but the amount of time and
the effort it takes them to read, to write, study, to get to from
point A to point B maybe considerably more than what someone without
that disability has to invest. And so we are reminding
people to not judge the, whether somebody is
substantially limiting, limited just by virtue of what
outcome they are able to achieve because outcomes
can involve having to do a number of different things
for people with disabilities that people without
disabilities don’t have to do. The next slide is in a sense
sort of the mirror image of the two
slides before. These are some impairments that usually will not meet
the definition of disability. We had some
comments that said, we should say impairments that consistently won’t meet
the definition of disability so it’s more so that
it matches more closely the formulation of (j) (5), but you know here are
some things obviously because of their minor
and very short-term nature we thought would not be
substantially limiting you know, the common cold,
regular, seasonal influenza, minor gastrointestinal
disorders. Interesting one, you know, broken bone that’s
expected to heal completely that was one on which we
got a number of comments and some commenter said
on the disability side that a broken bone that
is expected to heal completely certainly can be substantially limiting in
their view in some instances because the fact that a
broken bone heals completely doesn’t account
for the fact that it may take a
while for it to heal, that it maybe a complicate
process of healing and most importantly
doesn’t account for the fact that while the
broken bone lasts, the person can’t walk,
if it’s a broken leg or can’t perform certain manual
tasks if it’s the broken arm and so the person in fact during the time that the bone
is broken and is healing is in fact
‘substantially limited’ in major life activities
according to these commenters. So they urge that
sort of we… that if we’re
going to have examples like this
that we delete from that list broken bone that’s expected to
heal completely. The next two slides
deal with them… -Excuse me.
-Yes. We have two questions, one is concerning
providing accommodations and the issue of reasonable
accommodations for employers. What advice or guidance or
suggestions can you give them when many times employers
are concerned about employees who are abusing this system? Well, I think that
you can still… that employer still
have the right to and I don’t know what the nature
of the particular abuse is, but employer certainly still
have the right to look into whether someone needs
an accommodation and if there is
some indication, you know, the fact that coverage
maybe easier to establish doesn’t mean that it,
that employers can’t look, you know, can’t
genuinely enquire into the need for accommodation
if they’re concerned that the person
hasn’t demonstrated the need. So somebody who has a
non-obvious disability, you know, some of the impairments on
that list of things that would consistently meet
the definition of disability are non-obvious
disabilities, many of them are, employers can still
get documentation that the person has the
impairment in question, can still get documentation
to some extent of how it limits major
life activities. That documentation might
look a little bit different because now
mitigating measures aren’t considered
when determining whether somebody
has a disability so you might be looking at you know trying to understand
how the impairment limits the person without
mitigating measures, but most importantly
I think now the documentation,
as it did before, also has to demonstrate where the need for
accommodation isn’t obvious, the documentation
should demonstrate the need for accommodation. So employers still have
the right to look into that, still have the right
to question things that they believe are not appropriate request
for accommodation or where the person hasn’t
demonstrated a need and I don’t think the Amendments
Act really changes that. To a great extent it makes
our accommodation analysis more focused and
really focuses, so on that second
part of the enquiry, the need for accommodation
rather than on coverage. It… was there a
second question? Yes there is. The second question comes
from an HR practitioner who says that she is seeing
more and more employees who appear to be addicted
to pain medication and the medication causes
the individuals to be sleepy, lose concentration,
and interfere with their ability to report to
work and so on. So the question
is at what point if the individual’s
underlying medical conduction does not meet the
requirements of ADAAA, would the addiction
to the pain medication or the affects of
the pain medication itself become a condition
that should be considered? Well that’s a
good question. The first… the answer to the
first part of it is that if we are talking about
an addiction to pain medication and we are talking about
the illegal use of drugs and that could include use
of drugs that are illegal or the illegal use
of legal drugs. So if somebody is addicted
and they are taking pain medication in a way
that is not appropriate and not in accordance
with the prescription, they are illegally
using drugs. Those individuals
are not protected under the ADA and
Rehabilitation Act. The Amendments Act
didn’t change that and employers are
allowed to take action that’s based on someone’s
current illegal use of drugs. Now, if they have an
underlying impairment for which they are taking
medication legitimately and according
to a prescription that is they’re taking
prescription medication, first of all
I would wonder whether the
underlying impairment doesn’t meet the
definition of disability and I’d bear in mind again how broad the
definition is and that without the benefit
of the mitigating measure, the impairment might, for
it well be a disability and… but the issue becomes that
if the use of the medication, even though the underlying
impairment maybe a disability, if the use of the medication is
actually rendering the person, unable to perform the
essential functions of the job or unable to perform them
without posing a direct threat and there is no reasonable
accommodation that can be made to enable the person
to work in that job, then we might
be talking about a situation where we have
to consider reassignment as a form of accommodation. So, where the drugs
are being used legally according to a prescription
and they are causing these certain symptoms
to manifest themselves, we may have an individual
who has an underlying disability for which they are
using the medication and yes reasonable accommodation
would include accommodating the effects of the medication that they use for
that disability and the reasonable
accommodation that needs to be
provided will depend on what’s possible to provide
given the nature of the job, the nature of the
person’s limitations resulting from the medication
it may be possible to accommodate the person in
the same job, it may not be, and if it’s not the next
step is for the employer to consider reassignment
as a form of accommodation. The last couple of slides
that I want to touch on before I hand it
back over Joyce and start talking record
up and ”regarded as’,’ are just a couple
of slides on working as a major life activity. This is probably going
to be more important as a practical
matter in litigation than it is in actual,
real-time processing of reasonable
accommodation requests. But be that as
it may, the… it may be relevant
in both context and the Notice of
Proposed Rule Making tries to provide a simpler,
more straightforward approach to this issue than
has been provided in the past. The first point that we make
here on the slide is that because individuals, after the
Amendments Act in particular, are often going to substantially limited in some other
major life activity, it may not be
necessary to include whether they are substantially
limited in working. So, we don’t
even get there when someone has demonstrated
his substantial limitation in another major
life activity. If we do get there, the slide tells us, at least
as far as the NPRM is concerned, that what we chose to do
was talk about a type of work. Someone is substantially
limited in working when they are
unable to perform, when they are substantially
limited in performing a type of work as compared to most people
having, you know, similar training skills ability
background et cetera. What we’re trying to do
here is get away from the class broad range
approach to working where courts have said you’re
substantially limited in working under the old
ADA using our, the formulation in
EEOC’s 1991 regulation, you have to be unable to do a
class or a broad range of jobs. And the Courts who have not
been very good at defining what a class or broad
range of jobs is, what they seem to
be saying is that, they ultimately they
seem to be saying we’ll sort of just balance
the number of jobs you can’t do against the number
of jobs you can do and if the number of
jobs we think you can do seems sufficiently numerous, we’ll consider you to
not be substantially limited in working. We are trying to focus
more on what is it and we’ll go to the next slide,
what is it about the job? What function of the job
can the person not do or not do without some sort
of reasonable accommodation because of the impairment. There is some
things that we think are going to constitute
a type of work, and we give some
examples of those. Like, if somebody is
substantially limited in doing things like, clerical jobs,
food service jobs, commercial truck
driving jobs, driving trucks that weigh
10,000 pounds or more and are regulated by DoT,
law enforcement jobs. These are examples of things that we would think
are type of work, if there is something
about their, the persons’ impairment that makes them unable
to do those jobs or limits them in their
ability to do the jobs or maybe requires
them to have some kind of a
reasonable accommodation. But then, I think the
more important point here is the second
point, which is look to identify sort
of what the function is that the person can’t do or substantially limited in
doing because of the impairment and if that function applies to
more than just one kind of job then the person
would be substantially limited in a type of work. And to give some real
practical examples, somebody maybe
able to lift… this is a situation
that deals with scenarios in which the person
faces limitations on the job because of the impairment that the person doesn’t
face of off the job. And a couple of
quick examples, one would be, person can lift
about as much anybody else and as frequently
as anybody else, but the person has
been doing a job that requires him or
her to lift a lot, heavy lifting frequently and the person has some
kind of a back impairment that prevents the person from
doing heavy lifting frequently. Well, although the person might not be substantially
limited in lifting, the person
might be substantially limited or would be
substantially limited in a type of work that requires
this kind of lifting and so would have to be a
reasonably accommodated if they had that
type of limitation even though the limitation
for the most part isn’t affecting
them off the job. Other, one more
quick example, somebody who can stand
about as long as, you know, most people in the
general population can stand, but the person works
in a retail job and is expected to stand almost all of an eight
or ten-hour shift and they have a
leg impairment that prevents them
from standing that… doing that kind of
extensive standing. Again that person would
be substantially limited in a type of work, because they
have an impairment that’s affecting their
ability to do some, to meet some kind of
job related requirement even though they don’t
have a limitation, a substantial… necessarily have a substantial
limitation off the job. With that I am going to throw
it back to Joyce to talk about record of and the very important
”regarded as” prong. Okay. As Chris said the
statute retains the three-prong
definition of disability, and what he just talked
about was prong one, a person who has, you know that
we call the actual disability, a substantial or current limitation of a
major life activity. The other two prongs record of
is still in the current statute and it is not changed. It still protects
an individual who may have had a physical or
mental impairment in the past, but no longer has
an impairment or… so the person
who has a record or history of a substantial
limb impairment. The new definition of
substantially limit applies to this prong
of the definition too. So that means it’s no longer
means significantly, that the person had
to be significantly or severely
restricted in the past. So, a person who has, you know,
record of a disability, and lot of times other
people who maybe, we talked earlier about
surgical interventions, so it could be somebody who is
not going to meet the definition of having a episodic
condition any more because, say for example, in epilepsy
that they had some surgery, and, you know, they no
longer have seizures, the doctor don’t think the
seizures are going to recur, but they have a record
when they were having, past where they did have seizures that person will meet
a definition under record of. In NPRM… and most
importantly note that EEOC’s long-held position that a person with a
record of a disability may still be entitled to reasonable accommodation
if needed. And we often get examples, you know, people
sometimes have hard time figuring out when would somebody
who just had a record of still need a reasonable
accommodation and we think a good
example is that if someone who has a
past drug addiction. As you know, under
the Amendments act as well under the
original statute people who are currently
using drugs illegally and as Chris pointed out that
could be a person who is using illegal drug or
illicit drugs, or a person who is using drugs
such as prescription medication was using it for the purpose for which they’ve not
intended or somebody who was using somebody else’s
prescription medication would be considered
a current drug user and that person will
not be considered… would not be covered
under the statute. But a person who
has a past addiction of an illegal drug
would be covered and such a person may have
had say an addiction to cocaine or any number
of other illegal drugs no longer is
using them, so… but needs and accommodation,
need to talk to… needs to go to Narcotics
Anonymous meetings or needs to talk to their mentor
or counselor on the phone and an employer
prohibits personal phone calls. Well that’s a person who may
still need an accommodation that means modification
of existent policy because they… of their
record of having a disability. So, that… I mean there
is not that much more, Chris, do you have
anything about, record of is pretty still,
pretty straightforward, just keep in your mind that the new definition
of substantially limit applies. The real change, why do I remember advancing
for Chris but not for me, okay, the real change comes under
third prong the ”regarded as” and this is really critical, because it’s really going to
facilitate the charges where a person is not claiming that they were denied
a reasonable accommodation, but really claiming
just for treatment that they were
treated differently than a person without
a disability. And if any of your
practitioners you know how difficult it was to show
you know ‘regarded as’ disabled because you had to
sort of get into the mind of the decision maker. Under this… the ADA Amendments
Act, it’s no longer… it no longer
requires a showing that the employer
perceived the person to be substantially limited
in major life activity. Because, as you know that was
always very difficult to prove, that I perceived
the person is being substantially limited
in performing manual… did the employer perceive me as
being substantially limited in performing manual tasks, or employer perceived me as me
as being substantially limit and walking or
standing or you know, a lot of times ‘regarded as’
cases were working cases and particularly in
the Federal sector, a lot of times the cases we got
were from the postal service, people who were
denied employment because they didn’t meet a
physical requirement and then they would say well,
you know because of my past, my back problems or because
I have you know flat feet, I did not get hired
and so they would… a lot of times they
couldn’t meet the definition of the prong one, they didn’t have you know, and so they couldn’t meet the
definition of the prong two because even though
they had an impairment it didn’t rise the level of significantly or
severely restricting either currently
or in the past and so they would argue that
they were substantially, they were ‘regarded as’
substantially limited in working. And so you would have
to go to as Chris said, you know that sort of class
abroad ways of the job. Well now if a person is
‘regarded as’ being disabled, if he or she is
subjected to an action prohibited by the ADA
based on impairment that is not transitory
and minor. So it has to be both. They have to have an
impairment that is expected, this is going to last
or expected to last six months or longer. And so that means that employer
can no longer take an action or refuse to hire a person,
terminate a person, place a person on
voluntary leave, take action because a
person doesn’t meet the qualification standard, any of the people that
fall into this provision, any of the people
who are ‘regarded as’ disabled and are not asking
for reasonable accommodation are covered if they can
show that this action was taken on an impairment and is
not transitory and minor. So the cause of substantially
limited in major life activities don’t apply to this
prong of the definition and evidence
that are covered and believe that an
individual had a substantial limiting major life
impairment is also irrelevant. So the important
thing though is that establishing that
employer took action because they regarded somebody
as being substantially limited doesn’t mean that
there is liability. It just means that
the person is covered and that’s an important
distinction to make. So it just means that, okay a person is covered
employer still gets articulate, you know a non-discriminatory
reason or to asserted defense, it just means that, you know but
it is easier to show coverage. And so for those of
you are practitioners, it doesn’t mean that
you should ignore, maybe it is not clear
that the person is asking for a reasonable
accommodation, it may come out
that as, you know as you talk to a person
certainly those who are doing investigation may realize that the person came
in the door sounding like they were
alleging desperate treatment, but as you know,
as it started to unfold, you also realize that there is
a reasonable accommodation claim and certainly by all means
then you still have to look at from one of the definition
or maybe prong two. Are there any questions
before I go further because I see some
confused looks, but you know I don’t
know if you really… did you understand the
importance of the change in the statute in
terms of ‘regarded as’. Okay, you want to
add anything Chris? No, go ahead. He tells me to go ahead. And so a good case,
as I said earlier, we haven’t seen a lot of cases
under the ADA Amendments Act, but there have been a few and this was an interesting
case because someone claimed that he was ”regarded as”
as having a disability and this case is George
versus TJX Companies and the plaintiff in this
case worked for retail store where his job entailed
lifting, stacking boxes, approximately 400, to 450
boxes of merchandize daily and he said he was terminated
for abandoning his position in part according to him because of how
he was treated when he sustained
a fractured arm. And here the
court found that, you know the record
evidence overwhelmingly supported inference
that plaintiff’s impairment lasted only a few months,
it lasted only two months and that he presented
no evidence to dispute that the employer saw
him as having a temporary injury that without permanent
or long-term effect. So here the
employer says no. Here is a case where
you know the person doesn’t meet the
definition because even though he had a
fractured arm it was, it met the definition
being transitory and minor, so he was
not ”regarded as” as having a disability, nor did he show that
he met the definition under the actual problems. So this was the case where
Chris said earlier where certain types of works, so
here is a job where he has to, you know pick up 400
or 450 boxes a day and so ordinarily a person
wouldn’t have to do that, but he wasn’t asserting that
he had limitations that, you know overall
prohibited him from lifting this
number of boxes or that the weight of
the boxes was a problem. He was saying that he was, you know he specifically
said he was terminated because he fractured his arm and presumably this was, you know, the fracture was
supposed to heal normally and in this case, you know it was only it
only lasted two months. So again as Chris said
about the broken leg that was expected
to heal normally, we did receive comments
where we should not consider that as not meeting the
prong one definition because of the
limitations that occur when a person does
have a broken limb, but again I think
in this case while the person had
fractured arm, it was only expected
to last two months. So, probably you know
it does not meet the definition or
duration under prong one and here because
it was suppose to, it was only temporary
and it was minor, he didn’t meet the definition
under ‘regarded as’ either. Some of the examples of… I’ve already talked about in
terms of ‘regarded as’ examples, somebody was not hired due to
a broken leg or sprained wrist is expected to heal normally
is not ‘regarded as’. Someone who wasn’t
hired because of carpal tunnel syndrome or
Hepatitis C would be… meet the definition
of ‘regarded as’. Again, it doesn’t mean the
employer is necessarily liable for not hiring
the person or that their discrimination
will be found, they’ll get a chance to
articulate the reason for not hiring the person, but as far as coverage of person
would meet the definition or someone who is terminated because employer misperceives
a person has heart disease, a person really doesn’t
have a heart disease, but the employer believes
that person has heart disease and says, I am not going
to hire you because you know you are going
to be out frequently, have frequent absences or
you may not be able to do the essential
functions of this job, would meet the definition under
prong three the ‘regarded as’. The other important thing to
remember about ‘regarded as’, even if an employer doesn’t
take action again because you know he doesn’t have
to know of the condition, the impairment, but he perceives
that a person has an impairment
based on the symptom, so in instances of, you know person taking
a certain medication and employer doesn’t
hire somebody because he is
taking medication, that’s also a
‘regarded as’ claim or in case where a person, you know, the person
comes in for an interview and has a facial tic, employer doesn’t
know that it’s because that person has
a Tourette Syndrome, but just doesn’t hire the
person because of facial tic even though the employer
is taking action based on a symptom
of a disability that he doesn’t know of, that… the employer
still has regarded that person as
having a disability and then has to assert a
reason for not hiring him. Again the NPRM says,
action taken on basis of mitigating measures
used for an impairment or symptoms of impairment,
actions based on the impairment. And again I say, because an employer
doesn’t hire somebody because he takes the
anti-seizure medication, the employer is regarding the
person as having disability even if he doesn’t know that
the person has epilepsy. And there we
have we have seen at least one case,
there maybe more, but one of the interesting
cases that came out of that, that applied the ADA Amendments
Act was the Wurzel case, Wurzel versus Whirlpool. And this was a case
were person had… was a material
handler for Whirlpool and he had to
drive a tow motor to deliver items
throughout Whirlpool’s plant. He developed a condition called,
it was heart condition… Prinzmetal angina. Prinzmetal angina which had
heart attack like symptoms that meant that he would… he experienced frequent episodes
of tightness in his chest, shortness of breath, dizziness,
left arm numbness, and fatigue, he took intermittently and
then he came back to work. So employer decided well because of the frequency
of these conditions then we don’t think you are
qualified to drive the tow truck and then they transferred
him to a position in the paint department, but then because of you know
subsequent medical review it was concluded that he
couldn’t do these jobs either and because it required
working in low hanging, on a low hanging conveyer
belt and also sometimes required him to work outside
the presence of other employees. So the employee alleged that,
you know, he was terminated because employer regarded
him as being disabled, but in this case
the court said no, he wasn’t really terminated because the employer regarded
him as being disabled, he was terminated
because the employer… because employer regarded
him as posing a direct threat and the employer was motivated
more about the consequences of the plaintiff’s condition,
not the condition itself. So this case was sort of
interesting because you know, and I think… we think it
was sort of wrongly decided, and this case is on appeal that it sort of jumped
the gun and said, no this is really in
the coverage issue, you know we are going to go
to the defense and without, you know,
acknowledging that… the plaintiff met his burden of
showing that had a prohibit… you know, an adverse
action was taken because he was ‘regarded as’
having the disability and so that… the plaintiff
satisfied the burden of showing, you know, that he was
covered by the ADA and then the
employer gets to argue whether or not the
person, you know, actually posed a
direct threat. But here the court says,
no we are going to skip, you know, it’s not really
a issue of coverage, we are going just
skip to the whether you know an employer was really
motivated by safety concerns and in this case we found
that the employer was, so therefore the plaintiff
loses, anything to add? Yeah in Wurzel, you know
they relied on an old case that actually had
subsequently been overturned, an old District
Court case from I think the Eastern
District of Virginia… Western District of Virginia that was subsequently
overruled by or overturned by a Fourth Circuit
decision in the same case. To make a distinction, Wurzel makes this distinction between the effects
of an impairment and the impairment itself and that is something
that courts have really or at least the…
that courts have rejected that it’s not that
you can’t separate, you can’t say that on the one
hand the person has angina, but on the other
hand taking an action based on the
effects of that angina doesn’t somehow
amount to the same thing as taking an action
based on the impairment. So the court sort of separated
these two things out, taking an action
based on the impairment which is critical
in establishing ”regarded as” coverage
and taking the action, taking an action
based on the effects of an impairment and somehow that way got around finally
”regarded as” coverage. I think we would see this
case as one in which the effects of the
impairment are so inextricably linked to the
underlying impairment itself that you can’t
really separate, analytically you can’t
separate the two things. I would just want to say two
other very quick things about ”regarded as” and then
I will rush through, but give you all the
information necessary from the last four slides. One issue is that although we
say… we provide an example of a broken leg that’s
expected to heal normally as being something that
is transitory and minor, and therefore we
say an employer who takes an action
based on a broken leg wouldn’t be regarding the person as an individual
with a disability and that sort of
is consistent with, as Joyce pointed out, what the court in the George
versus TJX Companies cases did with the person who
had the broken arm. But we did receive numerous
comments, particularly from groups representing
individuals with disabilities, to the effect
that a broken leg, they said, is not
transitory and minor. It has to be both in order
for the employer to avoid regarding the
person as disabled. The impairment has
to be transitory that is lasting or expected to
last for six months or less, but it also has to be minor. And the commenters
pointed out that even if a broken
leg is transitory in the sense that it may
heal within the six months, it is not minor in their
view when it is broken because it is limiting the
person’s ability to walk or maybe even preventing
the person from walking during much of the
time that it lasts. And so that is something
that we are going to have to look at in
the final rule… in the process of
putting out a final rule, to take into account those
comments that said we – EEOC, you didn’t interpret
transitory and minor correctly, you’ve sort of collapsed
the concepts together in this example
about the broken leg. The other point that
commenters made, there were many commenters who did not like the point
that we made about symptoms that taking an action
based on the symptoms of an impairment or mitigating
measures used for an impairment is the same thing as taking an
action based on the impairment. Many of the commenters
were concerned about what that
would mean in cases where employers were
trying to discipline people for violating legitimate
performance and conduct rules or who were posing a threat
in performing their jobs because of the symptoms
of an impairment that the employer
didn’t know about. So the example they
gave frequently was, person who is
sleeping on the job. The employer doesn’t know that it’s due to an
underlying impairment and takes action to
discipline that person or terminate the person. The employer, those
commenters claimed, should not be responsible for having regarded
the person is disabled, because they acted on
the basis of this symptom and did not know about
the underlying impairment. So that’s another issue that
we are looking at as we… you know as the commission
considers the final rule. The last four slides… -Excuse me.
-Yes. We have a couple
of questions before you go on to
your closing slides. One person would
like to know if pregnancy is ‘regarded as’
transitory and minor? Pregnancy is not a disability
under any of the prongs because it’s
not an impairment and it’s not really
‘regarded as’… it can’t be ‘regarded
as’ being an impairment. If you are regarding
somebody as having an imp… having a condition that
is not an impairment, you are not regarding them
as having an impairment, but I will mention something
very interesting. There is a case… so you don’t
get into transitory and minor with pregnancy and I
don’t think it would… if it were an impairment,
it wouldn’t meet the transitory, it wouldn’t meet
the transitory part because it’s more
than six months and most women I know would
say don’t meet the minor part. So, but you know there
is an interesting case in which the six… I believe the Sixth
Circuit in a case Spees was the name of
S-P-E-E-S was the name of the plaintiff
or the appellant in the case. She was an individual…
was pregnant and was reassigned
to another position, she was a welder and
she was reassigned to a less prestigious, less strenuous position
during pregnancy, but it was because of
concerns that the company had about problems that she had
had with the previous pregnancy and whether those problems
would occur again if she were left in
the welder position. So the employer in
that… and the court said the employer may well have
regarded her as disabled under the old ADA, not because they
regarded her as pregnant, but because they regarded
her as at risk of developing medical conditions
related to pregnancy that themselves
could be impairment. So medical conditions
related to pregnancy can be impairments and they
can be substantially limiting, or if they can be ‘regarded
as’ substantially limiting. And that would be like
gestational diabetes which a lot of
women develop or you know hypertension is
brought on by pregnancy. Other question? Is there any obligation
for an employer to accommodate someone who
has a driving restriction and they are otherwise
able to do their work, however, they simply cannot
drive to and from work? There… well,
if the person… if the person
cannot get to work, we maybe talking about
a telework situation and that
is a possible accommodation, if the job is of
the nature of… that it’s essential functions
can be performed from home. If the person can never get to
the work site you know maybe… this maybe a difficult
kind of accommodation because there are jobs that… many of the functions can
be performed from home, but some of
them cannot be. There are also though jobs and there are people
who work in them whether for accommodations
or for other reasons that can be performed
entirely from a remote site that is not the
traditional workplace, so that maybe an option. Now another accommodation maybe
that the person can’t drive but has to take
public transportation, or get a ride to work,
and so they can’t meet, you know they can’t get to
work precisely at the time or take paratransit and can’t get to work at precisely the time the
employer needs them to arrive in the morning. It would be a
reasonable accommodation to give that person a
modified work schedule to allow them a later start
time and a different end time as a form of reasonable
accommodation. There is a third class of
cases that I can think of and there have been two recent
decisions in cases like this in which individuals
could not drive at night and what they wanted… they
could drive during the day, they can see well enough
to drive during the day, what they wanted were
shift changes to the… to the day time so that they could
get to and from work when they could see
well enough to drive and courts have
said that maybe a form of reasonable
accommodation because although the
accommodation has to do with the person’s ability to
commute to the workplace, what is within the employer’s
control is the work schedule and the employer could
modify that work schedule and give them
an earlier shift. And the viewer
is asking further, is there any obligation
to accommodate an employee they thought that transportation
to and from work was the employee’s responsibility? That’s true. So the employer does not
have to drive the person to and from work. This is a much
misunderstood point I think that although
the employer isn’t required to provide
transportation for the employee, if it doesn’t provide
transportation for other employees, it is required to
make some forms of reasonable accommodation that are necessary because
of difficulty commuting that a person experiences. The one thing that
I did not mention is that and I have seen
this in some cases where an employer has
multiple facilities, one of which is sufficiently
close to the person’s home that they can get there
by public transportation or they can drive a
much shorter distance. Sometimes problem is that the driving is too
much for the person if they drive two
hours to the work site, it’s too difficult
for them to do that but they could drive a
half-hour or 15 minutes or they could take
public transportation to a closer facility, reassignment to
another facility could be a form of
reasonable accommodation, assuming that there
is a vacant position for which the
person is qualified. But it’s much
misunderstood that because the problem the person is
having relates to commuting that the employer has
no obligation at all, that’s not correct. The employer doesn’t have to
provide the transportation, but it may have to
provide some other things. And the final question we
have is regarding an employee or employees who
are not complying with physicians’ orders
to take medication. For example a type 1
insulin dependent diabetic who fails to constantly
take prescribed medications and results in
failure to perform the essential functions
of the position due to a direct threat to
either himself or others? Well, yeah the employers,
you know, a person is not, you know is not required to use a mitigating
measure in order to, you know to…
to claim coverage as we said that
you look at the person without regards of
mitigating measure, but obviously
whether or not somebody is using
mitigating measure may have direct implications as to whether or not
that person is qualified and certainly employer can
look it whether or not you know a person is using
mitigating measures. And if those mitigating
measures would help that person to perform a job, a employer can certainly
look at the fact that you know because
the person is not using his mitigating measure,
they can’t perform the job. So it definitely
can affect the… you know the sort of
qualified analysis. It could also affect you know
direct threat analysis too as you know
person who… if they were taking medication
who has a seizure disorder they would not have you
know a frequent seizures. The person say they don’t
want to take these… and a lot of people do opt
not to take certain medications even though it
may correct or you know ameliorate their
underlying impairment, they don’t like the
negative side effects so they choose not to take
medication which is their… their prerogative. But the fact is that if the
person is not taking medication and that person is you
know poses a direct threat, a significant you
know risk of harm, employer can certainly
look at that in determining
whether or not you know person is
qualified for a job. But no the ADA
Amendments Act, you know, of course employer still
does not have to monitor whether or not somebody
is taking medication, certainly should not
ask whether or not you know under
most circumstances whether somebody is taking
particular medication, but can factor that
in to whether… in deciding whether or
not a person is qualified and particularly whether or not
that person poses direct threat. And they certainly can take
it into account as part of qualified and
direct threat, what an employer can’t do is say, “Well, you are not
taking your medication therefore I am not going
to provide you with
a reasonable accommodation.” There are situations in which somebody is not
taking a medication, they do have… as a result they have some job
related limitations but there is an accommodation other than just saying to them,
“Well go take a medication,” that would enable them
to perform the job and an employer
can’t use as a reason not to provide
an accommodation that would enable the
person to perform the job the fact that the
person isn’t taking a mitigating measure
or using one. I know that we are supposed
to be done at 3:30. Is it possible to just… because we’ve answered
a few questions to take five minutes
on the slides? Sure I would be
happy to do that. So the next slide talks about
a few additional provisions of the ADA Amendments Act. One of them, I am going to
take the two lesser ones first. One is a
language change to the general prohibition
of discrimination in Title I of the ADA,
the employment provisions. The language was changed to
prohibit a discrimination on the basis of
disability rather than discrimination against
a qualified individual with a disability because of the
disability of such individual. That is… has the benefit
of having fewer words, the new formulation, but I
think the biggest change that this was supposed
to make was to… I don’t think it makes
much legal difference, the formulation, but the
purpose of the change was to make it clear to again
send the message to courts, to administrative
agencies, to employers, that the focus is going
to be not on coverage, but on whether there
was discrimination and I think that the drafters
of the Amendments Act thought that the prior
formulation focused too much on against a qualified
individual with a disability because of the disability
of such individual that it put the qualified
individual with the disability first because you
know before the… because of language that sort
of was contributing to courts wanting to focus too
much on coverage. I don’t know whether I entirely
believe the rationale for that but this was just
a way to underscore that the focus should be
on the discrimination. The result of changing
that language is that it raised some issues as to
whether it was still okay for employers to do
affirmative action or take actions on behalf of
individuals with disabilities that they didn’t do for
non-disabled persons and the last
point makes… makes it clear that individuals
without disabilities cannot claim that they
were discriminated in violation of the
ADA or Rehabilitation Act based on an allegation that someone with a disability
got something including a reasonable
accommodation that they didn’t receive. So there is no… the ADA doesn’t prohibit
discrimination on the basis of
non-disability. The first point is that there is
a new provision that talks about qualification standards that screen out individuals
based on uncorrected vision and the easiest way
to illustrate this and what the law
says is that an employer has to show that
such a standard is job related and consistent with
business necessity if the standard is challenged. The way to demonstrate this is
by going back to the Sutton case that we talked about early
in the presentation. Sutton was about two sisters who wore contact
lenses or glasses, they fully corrected
their myopia, but without their
glasses or contact lenses they had very severe vision
impairment, 20 over 200 or less. It didn’t meet United’s uncorrected vision
standard of 20/100, uncorrected. The Supreme Court said
they are not covered as individuals
with disabilities so they couldn’t challenge
United Standard. Well now after the
ADA Amendments Act they are still not covered, why because they wear ordinary
eye glasses or contact lenses that fully correct visual acuity
or eliminate refractive error. Can they challenge
United Standard? Yes, they can because
of this provision concerning uncorrected
vision standards, someone without a disability even some who wears ordinary
eye glass or contact lenses can challenge an uncorrected
vision standard and require the
employer to demonstrate that why the standard is
needed that it’s job related and consistent with
business necessity. The next slide just
deals with retroactivity of the ADA Amendments
Act and says it doesn’t apply to
things that happened prior to January 1, 2009 when the Amendments Act
become effective. Joyce raised a question,
interesting one, about the retroactive
effect of any final rule that we put out on
the Amendments Act. I am not going to
get into the niceties of the administrative law on whether rules can
have retroactive effect based on whether they
are interpretive rules, they can have
retroactive effect or legislative
rules that cannot. The point is that whether the final rule was
considered retroactive or not, once it is out in the
public domain I think courts are going to
look to it for guidance whether they think they
are bound to follow it, you know as the law or they
just rely it on it for guidance for something that happened
prior to the effective date of the final rule. They are still going to be
looking to the final rule, so it’s something that
I think is largely not a significant issue,
because I think courts are going to rely on
it once it’s out. Last of couple of things implications of the
ADA Amendments Act; couple of implications here concern
a reasonable accommodation, documentation as I pointed out
earlier is still permissible where the disability or need for
accommodation aren’t obvious, but the documentation
may look different. It may focus more on the
limitations of the person without mitigating measures because that’s what we do
when we look at coverage, but most importantly I think the documentation will
focus less on coverage and more on what the person’s
limitations are in the workplace that necessitate a
reasonable accommodation. Finally in the last slide cases that involve
simply disparate treatment under the ADA
Rehabilitation Act are going to be ”regarded
as” cases in most instances because ”regarded as” means that the employer took
some prohibited action based on an impairment that
is not transitory and minor. So what somebody
will have to show to establish coverage
is simply that, that the employer… that the
person had an impairment real or that the employer believed
the person had an impairment and that the employer took an
action… prohibited action, failure to hire,
demotion, termination because of that impairment that’s sufficient to
establish coverage regardless of what the
employer may have thought about the persons’
actual limitations whether the important
thought it couldn’t do… the person couldn’t do this job
or a whole lot of other jobs, it doesn’t matter, what matters is that
the employer took a prohibited action
because of an impairment. So disparate treatment
cases are going to be ”regarded as” cases. Failure to accommodate cases are going to be the ones that
implicate prongs one and two and employers should not
have qualification standards that screen people out
based on an impairment, that is a standard that says anybody who has x impairment
can’t do this job. If they have
standards like that and they screen somebody out, most likely the
employer is going to be regarding that person
who screened out as disabled and they are going to have
to justify the standard. So that is it. I know we raced
through the last few, but I think we’ve
covered everything and I want to thank everybody who participated here
in the auditorium as well as those who
participated over the web. Thanks.

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