Transcript Legal Options as a Caregiver

ADA Amendments Acts of 2008
AMY BONES
CREIGHTON UNIVERSITY
GENERAL COUNSEL
ADA Amendments Act of 2008
 This bill better defines who Congress intends to
meet the definition of disabled.
 No reliance on mitigating measures.
 What is a major life activity?
 Lowers the threshold.
 Requires broad interpretation of the ADA.
ADA Amendments Act of 2008
 ADAAA includes a conforming amendment to the
Rehabilitation Act of 1973 that affects the
meaning of the term disability in Section 504 of
the Rehabilitation act
 Prior law was being interpreted VERY narrowly
 According to the ABA Commission on Mental and
Physical Disability Law 2007 survey, employers
won 95.5% of the cases brought under the ADA
ADA Amendments Act of 2008
 Core rights:
 Non-discrimination
 Reasonable accommodation
ADA Amendments Act of 2008
 A “qualified” individual with a disability can:
(1) satisfy the skill, experience, education and
other job-related requirements
(2) can perform the essential job functions with or
without reasonable accommodations
ADA Amendments Act of 2008
 Disability means:
(a) a physical or mental impairment that
substantially limits one or more major life
activities of such individual;
(b) a record of such an impairment; or
(c) being regarded as having such an impairment.
ADA Amendments Act of 2008
 Definition” of disability is fundamentally the same.
 The goal of broadening the definition of “disability”
is accomplished by redefining how specific terms
are to be interpreted.
ADA Amendments Act of 2008
 Substantially limits one or more major life
activities.
 Past Supreme Court decisions said this meant to
“prevent or severely restrict the ability of an
individual to do activities of central importance to
most people’s daily lives.”
 EEOC was directed to revise its regulations
defining "substantially limits" to be consistent with
the act (broader definition; less restrictive).
ADA Amendments Act of 2008
 The House report, which may or may not be used
as guidance by a court, says:
 In the range of severity of the limitation,
‘‘materially restricted’’ is meant to be less than a
severe or significant limitation and more than a
moderate limitation, as opposed to a minor
limitation.
ADA Amendments Act of 2008
One commentator predicts: “Sometimes an agency
will hesitate to provide regulations when
uncertainty works in favor of a broad
interpretation …., I do not expect regulations to be
promulgated any time soon."
ADA Amendments Act of 2008
 “Mitigating
measures”
 Sutton v. United Airlines
 The U.S. Supreme Court found you do not ignore
mitigating measures. This holding resulted in a lot
of people not being covered by the ADA.
ADA Amendments Act of 2008
Mitigating measures: medication, medical
supplies, low-vision devices (which do not include
ordinary eyeglasses or contact lenses), prosthetics,
hearing aids and cochlear implants, mobility
devices and oxygen therapy equipment, as well as
assistive technology, reasonable accommodations
or auxiliary aids or services, and learned
behavioral or adaptive neurological modifications.
ADA Amendments Act of 2008
 For example, a person with epilepsy who takes
medication to control her seizures will most likely
be covered because we will consider what her
limitations would be without her medication. JAN
ADA Amendments Act
 People with conditions such as epilepsy, diabetes,
and mental illness, who control their symptoms
through measures like medication, good diet, and
regular sleep may be found to be substantially
limited.
ADA Amendments Act of 2008
 Major Life activities:
 Original ADA did not define this term
 Left to agencies that enforced the Act
ADA Amendments Act of 2008
EEOC used an illustrative list including functions
such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
ADA Amendments Act of 2008
Supreme Court defined the term “major life
activities” narrowly – those activities are of
central importance to most people’s daily
lives.
ADA Amendments Act of 2008
 Under the ADAAA, an impairment that
substantially limits one major activity need not
limit other major activities in order to be a
disability.
 “major” in major life activities should not be
interpreted strictly.
ADA Amendments Act of 2008
 Non-exhaustive illustrative list of major life
activities:
- caring for oneself
- reading
- bending
- sleeping
- performing manual tasks
- concentrating
- speaking
- walking
- seeing
- thinking
- breathing
- standing
- hearing
- lifting
- learning
- communicating
- eating
- working
ADA Amendments Act of 2008
A "major life activity" now include the operation
of major bodily functions, i.e. the immune system,
cell growth, the digestive system, bowel and
bladder functions, the neurological system, the
brain, the respiratory system, the circulatory
system, endocrine functions and reproductive
functions.
ADA Amendments Act of 2008
 Episodic:
 An impairment that is episodic or in remission is a
disability if it would substantially limit a major life active
when active.
 Epilepsy
 Cancer in remission
 When considering whether a person whose condition is
episodic or in remission is substantially limited in a major
life activity, we consider the person’s limitations as they are
when the condition is in an active state.
ADA Amendments Act of 2008
Under the Rehabilitation Act, the Supreme Court
found: “Congress acknowledged that society’s
accumulated myths and fears about disability and
disease are as handicapping as are the physical
limitations that flow from the actual impairment.”
ADA Amendments Act of 2008
 Regarded as:
 An individual meets the requirement of 'being
regarded as having such an impairment' if the
individual establishes that he or she has been
subjected to an adverse action because of an
actual or perceived physical or mental
impairment whether or not the impairment
limits or is perceived to limit a major life
activity.
ADA Amendments Act of 2008
 Theory: try to prevent employers from making
decisions based upon fears and stereotypes.
 Reasonable accommodations need not be
provided to employees who are “regarded as”
disabled.
ADA Amendments Act of 2008
 Cannot discriminate against an employee on the
basis of a perceived disability.
 Does not apply to impairments that are transitory
and minor, with an actual or expected duration of
6 months or less.
ADA Amendments Act of 2008
 More individuals will qualify as having disabilities.
 More cases in the future will turn on the question
of whether the plaintiff’s requested
accommodation was reasonable.
 Post ADA Amendments Act, the question will focus
on whether employers have complied with the law
(by providing reasonable accommodations).
ADA Amendments Act of 2008
 What is a reasonable accommodation?
 Any change in the work environment OR
 Way things are customarily done
 Enables applicant/employee to enjoy equal employment
opportunity
Nothing requires post-secondary educational
institutions to make modifications that would
fundamentally alter the nature of services,
facilities, privileges, advantages or
accommodations involved.
 (Rehabilitation Act protections are also involved
here).

ADA Amendments Act of 2008
Not expected to eliminate academic requirements
essential to instruction
 May be required to make modifications to enable
students with disabilities to meet those academic
requirements
 Modifications may include:

 changes in the length of time permitted for the completion of
degree requirements,
 substitution of specific courses required for the completion of
degree requirements,
 adaptation of the manner in which specific courses are
conducted
ADA Amendments Act of 2008
Documentation shift: from diagnostic
evidence of disability to the need for
requested accommodations.
ADA Amendments Act of 2008
Is there a process in place to determine if an
accommodation is reasonable or whether it
would be a fundamental alteration?
ADA Amendments Act of 2008
 Before refusing an accommodation, because an
institution believes it would lower academic
standards or fundamentally alter a program of
study, undertake a review process.
ADA Amendments Act of 2008
 Officials with relevant duties and experience
considered the accommodation request;
 They meaningfully considered the impact on the
program and the availability of alternatives;
 They reached a rationally justifiable conclusion
that the available alternatives would result either
in lowering academic standards or substantial
alteration to the program of study.
ADA Amendments Act of 2008
 Technical standards should be reviewed as well as
make sure they are anchored to the curriculum and
supported in policy and practice.
 Utilize objective performance criteria that can be
reliably applied to all program applicants or
participants.