Is Anyone Not Disabled?Presented by: Jeanne M. Kincaid

Copyright 2011 Drummond Woodsum. All rights expressly reserved.

CAVEAT!

This presentation addresses legal requirements and analysis of federal disability laws

Your state (and perhaps local) government may have laws/rules that more broadly protect the rights of individuals with disabilities

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The ADAAA

Effective January 1, 2009, Congress significantly expanded both Section 504 of the Rehabilitation Act and the ADA

The Equal Employment Opportunity Commission issued final regulations effective May 24, 2011 to reflect these changes in the employment context

29 C.F.R. Part 1630

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What Congress Did Not Do

With limited exceptions, Congress did not alter any of the other ADA provisions governing ADA provisions such as: Essential functions Reasonable accommodations Qualification requirements of

employment and student participation

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Individual With a Disability

Persons who: Have a physical or mental impairment

which substantially limits a major life activity

Have a record of such an impairment which substantially limits a major life activity

Are regarded as having a physical or mental impairment

Regarded As Disabled No requirement that the impairment

substantially limits a major life activity So long as it lasts or is expected to last

more than six months and is not transitory and minor

The myth/stereotype approach is eliminated

But to bring a claim under “regarded as” it must be a “prohibited” action

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Three Elements

Impairment Major life activity Substantial limitation

The Impairment Prong

Is assessed by documentation Provided by the employee/student

Purpose: To determine disability status To determine appropriate

accommodations

Caveat: Do not demand more than is needed

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Remember

Not all performance issues are impairment based

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The Major Life Activities Prong Caring for oneself Performing manual

tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending

Speaking Breathing Learning Reading Concentrating Thinking Communicating Working The operation of a

major bodily function

The EEOC Expansion

Sitting Reaching Interacting with others

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The List Is Not Exhaustive

The key word here is MAJOR

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The Substantially Limits Prong

Either unable to perform, or Substantially limited in the condition,

manner or duration of performing the major life activity in comparison to most people in the general population

EEOC regulation

Caution

The EEOC attempted to tackle “learning disabilities” which are by definition measured against one’s potential rather than others

The EEOC kept the “most people” standard but reinforced that mitigating measures must be disregarded in the assessment/analysis

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What It Is Not

An institution may not require evidence that the condition prevents, severely or significantly restricts a major life activity

Our view: If the limitation’s effect on a major life

activity is slight, mild or moderate, it is not enough

But you be the judge

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But wait . . .

An institution may not consider the positive effects of mitigating measures, such as medication, hearing aids “learned behavioral or adaptive neurological modifications”, medical equipment, reasonable accommodations or other interventions, except for the use of ordinary eyeglasses or contact lenses.

EEOC Expansion of Mitigating Measures

Psychotherapy Physical therapy Behavioral therapy

And again, the list is not exhaustive

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Mitigating Measures Refused?

According to the EEOC, an employer may not consider the effects of an employee’s refusal to use mitigating measures in determining disability status

Example: if an employee refuses to take prescribed medication But may consider in the “qualified” or

“direct threat” analysis

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And Just What Are Eyeglasses?

The EEOC rejected the Wal-Mart defense Do not consider where they were

bought or how they look Defined: “lenses that are intended to

fully correct visual acuity or to eliminate refractive error.”

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The Mitigating Measures Trap

Remember, positive mitigating measures should not be considered on the question of disability status

However, mitigating measures can (and arguably should/must) be considered at the accommodation stage

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Intermittent or in Remission

Intermittent conditions or conditions in remission qualify as disabilities if substantially limiting in their active state Rather standard-less

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Temporary Conditions

Very confusing area The EEOC refused to adopt a six

month durational standard Pregnancy?

If pregnancy-related impairment, could be

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Result

It should be relatively easy, with proper documentation, for an employee/student to establish that s/he has a disability

Kincaid Tip

If an institution is going to deny that the individual is disabled – hesitate – and be able to articulate for yourselves a fairly clear rationale

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Most Battles

Should be fought on the accommodation front Are any accommodations necessary and

reasonable to provide equal access?

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Accommodations & 3 Standards

“Actually” disabled May or may not require accommodation

“Record of” disabled May or may not require accommodation

Lone EEOC example cited: leave/schedule change for follow up

OCR has historically said no accommodation

“Regarded as” disabled No right to accommodation

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