Priya Dua suffers from epilepsy, but she considers herself a hard worker who has not allowed her condition to derail her career. But her last job as an account manager for a San Diego company tested her resolve.
Dua would have infrequent seizures, but her boss demanded that she come in right after an episode instead of letting her take a sick day or allowing her to telecommute.
“They could have easily accommodated me," she said. "I was able to access all the documents I needed for work from home."
“At one point,” she added, “due to worry of what my boss would do, my seizures became more prevalent.”
Dua doesn’t consider herself disabled because she’s rarely incapacitated for more than a few hours, and she has been able to keep seizures under control thanks to medication. She figured she just had to put up with such behavior in the workplace. Eventually she quit for a new job.
Under the Americans With Disabilities Act of 1990, Dua would not have been able to bring a claim against her former employer for failing to accommodate her condition, because epilepsy was not covered under the law. But the ADA Amendments Act of 2008 (ADAAA) — the first major changes to the original legislation — is redefining the definition of disability to include a host of workers with conditions such as epilepsy, diabetes or bipolar disorder that aren’t as obvious as someone in a wheelchair or a blind person with a seeing-eye dog.
Previously, such individuals may not have been considered by the courts to be disabled under the ADA because their ailments were episodic instead of constant or they were able to mitigate their condition through the use of medication or aids such as prosthetics.
“What the amendments do, in the broadest sense of the word, is open up the notion of who is disabled and who is covered by the statute that was very restrictive before,” said Paul Steven Miller, Henry M. Jackson Professor of Law at the University of Washington School of Law.
Definition of disability
Lawyers who represent businesses believe the new rules will be yet another burden on their clients, and some predict an onslaught of lawsuits as a result. Disability advocates believe it will be a boon for disabled workers with a host of diseases who were not protected from workplace discrimination before.
The Equal Employment Opportunity Commission is charged with updating its ADA regulation to reflect the changes in the law.
One thing for certain is that the amendments clarify one of the biggest questions that has arisen in disability bias claims and litigation in the past decade: Who is and who is not considered disabled under the ADA?
“In the past 10 years, it’s become extremely difficult for people to use the ADA, particularly to fight workplace discrimination,” said Jennifer Mathis, deputy legal director for the Bazelon Center for Mental Health Law.
The revision in the law, she added, “will reopen the doors of the workplace to people with psychiatric and other disabilities.”
Dan Kohrman, chair of the legal advocacy subcommittee for the American Diabetes Association, said one of the key changes is Congress’ recognition “that a substantial disturbance in a major bodily function is a disability. That surely covers people with diabetes.”
Under the original ADA, the wording referred to conditions that “significantly” and “severely” restrict activities. Now, the list of major life activities that would have to be impacted to qualify as a disability has been expanded to include things like lifting — for a worker who has back problems, for example — and concentrating — say, for a worker who has a mental health disorder — and immune disturbances that affect normal cell growth and bladder functions, according to the EEOC’s rulemaking notice for the ADAAA.
All these additions are making some employers nervous.
“Disabled workers should be given every opportunity to be successful, but the downside is all these regulations,” said Janine Yancey, an employment lawyer and CEO of emTRAiN, a human resource compliance training company. “It will become a chaotic mess in the workplace, adding new people and making it a whole lot easier to establish claims.”
She pointed to the changes in “mitigating measures” such as medication. Currently, employers typically don’t consider a worker disabled if they if they don’t display symptoms of a disease because they’re taking drugs, she said. Under the new rules, she added, courts will now say, “We don’t care if they can control it.”
This change is exactly what Brian East, an attorney with Advocacy Inc. who represents people with disabilities, sees as great news for workers.
East, who is also co-chair of the Disability Rights Committee of the National Employment Lawyers Association, maintained that an employer could fire a worker who has schizophrenia, for example, and claim the worker was not disabled because he was taking medication to control his disease or only had symptoms now and then.
“About half the ADA cases were thrown out before trial by a judge because there was no evidence to show a disability,” he said.
Fired for having cancer
Indeed, Ellen Simon, an employment lawyer who writes the “Employee Rights Post” blog, represented a man with HIV/AIDS who was found not to be disabled by the courts. She also had a female client with cancer who was fired for going to her chemotherapy appointment. “That case was thrown out because the employer argued cancer was not a disability,” she said.
That case was eventually settled, but Simon believes the new regulations will go a long way in clarifying the definition of who is disabled. “Instead of litigating whether or not a person is disabled, what will be litigated is whether or not the person was discriminated against. You still have to prove that in court,” she said.
The EEOC has been holding town hall meetings around the country to get input from business groups and advocates from the disabled about what the rules should include, and the public has until Nov. 23 to submit comments to the agency.
During an Oct. 30 EEOC town hall meeting in Philadelphia, company attorneys argued that the new regulations would lead to a flood of lawsuits because the definition of who qualifies as disabled has been broadened. There also was concern among attendees that employers may be forced to retain insubordinate workers or workers who pose a threat to themselves or others as a result.
“I don’t buy that," said EEOC Acting Chairman Stuart Ishimaru.
“The laws aren’t intended to protect workers that can’t do the job,” he told msnbc.com. His emphasis for future ADA litigation will be on bigger cases, not more cases, to “address systemic issues” regarding disability bias throughout the work world.
“The courts have taken a narrow view, and the focus had turned on whether this person had a disability or not,” he said. “These amendments are going to shift focus back to ‘Has there been discrimination here?’ ”