U.S. widening definition for disability at work

Eve Tahmincioglu • Profile • E-mail

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.”

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