Columns - Jill Fisher
What to do when the Affordable Care Act (ACA) Impacts Case Settlements:
The Benefits of an Accessibility-Focused Case Evaluation
A White Paper by Michael Fiore
One of the likely unintended consequences of the Affordable Care Act (ACA) is that Special Need Trusts (SNT’s) may be impacted due to settlement criteria that can be based on past, present, and future medical needs.
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Tech Update: Read an article about the implications of 32-bit and 64-bit processors for Assistive Technology Solutions.
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The ADA Amendments Act of 2008
What Should I Do Now?
Jill Fisher, Esquire
Determining whether an individual is disabled under The Americans With Disabilities Act ("ADA”) is, and has been since its enactment in 1990, a daunting task. Each situation must be decided on a case-by-case basis, analyzing each of the ADA’s standards before coming to an ultimate conclusion.
By definition, an individual is disabled under the ADA if he or she has a physical or mental impairment that substantially limits one or more of the major life activities. Once that criteria is established, a determination must be made whether that individual is a "qualified” disabled person under the ADA. An individual is "qualified” if, with or without reasonable accommodations, he or she can perform the essential functions of the position without posing a direct threat of substantial harm to the individual or to others.
The ADA Amendments Act ("ADA/AA”), which became effective January 1, 2009, does not change the ADA’s original definition of a disability. Rather, it expands the scope of the original law with a number of significant changes designed to loosen the Supreme Court’s and the EEOC’s narrow interpretation of the term "disability.” Here’s how.
Major Bodily Functions
The ADA defines a physical impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more an individual’s bodily systems or functions. The ADA/AA expands the definition of a "major bodily function" to include the following: functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The addition now of the functions of the "immune system" and "normal cell growth" indicates the intent to include as disabled those with HIV or cancer, without regard to manifestation of the disease.
Major Life Activities
Under the ADA, an impairment rises to the level of a disability if it substantially limits a major life activity. The ADA/AA makes it clear that "major life activities" (and other terms in the ADA) do not need to be interpreted strictly and the question of whether an individual's impairment is a disability under the ADA should not demand extensive analysis.
The ADA/AA includes the following list of activities that constitute major life activities: caring for oneself, performing manual tasks, speaking, seeing, breathing, hearing, learning, reading, eating, reading, sleeping, concentrating, walking, thinking, standing, lifting, bending, communicating and working. If an individual with a physical or mental impairment cannot perform one of the above activities, he or she is automatically considered disabled. (Whether that individual will be considered a "qualified” disabled person under the ADA would be the final inquiry.)
Mitigating Measures
Prior to the ADA/AA, the United States Supreme Court’s 1999 decisions in Sutton v. United Airlines, Inc. and Murphy v. United Parcel Service, Inc. required employers to consider certain mitigating measures, such as medications, prostheses, and hearing aids, when determining if someone is disabled under the ADA. Now, employers are directed not to consider such mitigating measures. In addition to the above examples, the ADA/AA includes the following examples of mitigating measures that should not be considered: medical supplies and equipment, low-vision devices (except ordinary eyeglasses and contact lenses), mobility devices, and oxygen therapy, equipment and supplies. So, for example, under the ADA/AA, an employee with diabetes (which affects the endocrine system) would be considered disabled without having to demonstrate that at any given moment in time, the disease was or wasn't controlled by medication (insulin).
Substantially Limits
Since the United States Supreme Court’s decision in Toyota Mfg. Ky., Inc. v. Williams in 2002, the courts have interpreted the term "substantially limits” to mean limited "considerably” or "to a large degree.” In addition, the Equal Employment Opportunity Commission’s ("EEOC”) regulations interpreted the term to mean "significantly restricted.” The ADA/AA, mandating that the term "substantially limits” be more broadly interpreted, has given the EEOC the duty of issuing new regulations which loosen the existing strict interpretations. However, until the EEOC issues its new regulations, employers should still look to the current regulations for guidance (and consult with an ADA professional or legal counsel).
Regarded As Disabled
The ADA prohibits discrimination against an individual who is "regarded as” having a disability. Prior to the ADA/AA, an individual claiming that he or she was "regarded as” having a disability had to prove that the employer regarded him or her as being substantially limited in a major life activity. Under the ADA/AA, an individual is unlawfully "regarded as” having a disability (whether or not the perceived impairment limits or is perceived to limit a major life activity) because of the discriminatory treatment he or she has suffered as a result of the misperception. In addition, minor and "transitory" impairments (lasting less than six months) are not to be considered disabilities under the "regarded as” prong. Finally, under the ADA/AA, employers are not required to provide a reasonable accommodation for an individual who meets the "regarded as" prong of the definition of a disability.
There's no doubt that the landscape of "the disabled" will be significantly enlarged by these and other amendments to the ADA. However, until the EEOC issues its regulations, employers may be even more stymied about what to do. Here are some practical, and preventative, measures employers can initiate now: (1) review all of your job descriptions, job qualification criteria, and hiring and other accommodation procedures; (2) train managers to focus on performance and conduct instead of perceived physical or mental limitations; and (3) consistently and appropriately document all employment decisions.
(Note: The above is intended to be informational only. It is not intended to be, nor should it be taken as legal advice for any particular situation.)
For more information about this topic, or other employment law matters, contact Jill Fisher, Esquire, Co-Chair Employment Law Practice Group, Zarwin, Baum, DeVito, Kaplan, Schaer & Toddy, P.C. at jfisher@zarwin.com or 215-569-2800 x186.
