How the ADA Amendments Impact PWPs
At first look, the ADA Amendments Act is a home run for people with disabilities. Congress’ retooling of the definition of “disability” should ensure that Americans with disabilities are now protected by the law, as originally intended.
How do these changes impact PWPs?
Quite favorably, and in a number of ways, including:
- The list of activities in the general definition of “major life activities” includes many activities of daily living with which PWPs often experience difficulty: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”
- Lest there be any doubt, neurological and brain function are expressly included in the list of major bodily functions, the operation of which is now defined as a “major life activity.”
- “Substantial limitation” must now be interpreted broadly, to ensure (rather than exclude) protection under the ADA.
- Since whether an impairment substantially limits a major life activity must now be made without regard to the ameliorative effects of mitigating measures, PWPs can hopefully now take care of their health without risking that improving their health by doing so will cause them to fall outside of the definition of disability because they are no longer “substantially limited.”
- For example, taking your meds, undergoing Deep Brain Stimulation surgery, using assistive technology or even “adaptive neurological modifications” theoretically no longer create a risk that improving your health will mean you are no longer “substantially limited” and thus not protected by the ADA.
- Congress wants the courts to assess your disability status without counting such steps towards health and wellness against you.
- Moreover, the ADA now establishes that an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
- How all this will play out in the courts only time will tell. It would seem that PWPs should rest much more assured that they will have protection under the ADA.
- Certainly satisfying the “major life activity” part of the “disability” definition should be more straightforward. And hopefully establishing “substantial limitation” will be less problematic in most cases.
- Still, there may be pushback against the ADA amendments, just as there was against the original law.
- And some of the changes, perhaps particularly those pertaining to mitigating measures, may be difficult to implement, especially in the case of people with progressive illnesses.
- For example, PWPs often wonder how they would be feeling without their meds – what is my true baseline now, can I cut back, etc? Can a doctor give a precise medical opinion about such questions to a patient, let alone to a court?
A Slippery Slope of “Substantial Limitation”
- Both before and after the ADA amendments, there is a slippery slope with progressive illnesses that can render protection by the law limited by time, and in turn complicate the decision making process for PWDs, particularly in the employment context.
- It can be framed with two vexing questions: are you sick enough to be covered by the ADA and, later, are you too sick to retain that protection?
- The reason for this quagmire, of course, is that the ADA protects employees with disabilities who can perform the essential functions of their jobs, with or without a reasonable accommodation.
- To have a disability, you must be substantially limited. A diagnosis alone is not necessarily enough.
- People with PD can and do live happy, healthy and productive lives for many years. Under the ADA, they have “impairments,” and are protected from some types of discrimination, but may have difficulty demonstrating a “substantial limitation,” which is required to obtain a reasonable accommodation. (Note: they are protected if “regarded as” disabled, and may also be protected by the current ADA language about mitigating measures or episodic conditions.)
- As their disease progresses, they all too often experience further limitation and will meet the definition of disability. That’s when they first have the right to reasonable accommodation under the ADA. That moment in time may be sooner than previously thought because of the ADA amendments.
- Under the ADA, "reasonable accommodation" may include:
- (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
- (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
- Reasonable accommodations can keep many PWPs on the job for a long time. At some point, you may even need and be able to take a leave of absence as a reasonable accommodation or a FMLA leave (e.g. for DBS surgery) and then return to work after recovery.
- Eventually, as illness progresses, there may come a time when you can no longer do the essential functions of your job, even with reasonable accommodations. And once you are too sick to perform those functions, your rights as an employee under the ADA have come to an end.
Managing ADA Considerations
How, then, is it best to manage these various ADA considerations in the employment context? That will of course depend on many factors including:
- Your employment status,
- The nature of your job,
- Your health,
- Your objectives,
- The extent of your desire to coordinate an approach with all of your available benefits and resources,
- And the important step of having your medical team onboard.
Content for this section provided by Mark Rubin, J.D.