Tip:
Highlight text to annotate it
X
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 *** 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 *** 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 *** 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, ***.
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 *** 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 *** 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, *** 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
*** 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.