New law removes loophole that afflicted disabled
By L.M. SIXEL
When former President Bush signed the Americans with Disabilities Act
into law in 1990, the disability-rights community was jubilant, at
least for a while.
Then in 1999 the U.S. Supreme Court ruled that workers with monocular
vision (where the eyes don’t work together), high blood pressure and
contact lenses were not disabled because they were able to control
their ailments through devices, drugs or other measures.
That meant that workers had no recourse if they were fired for
having,
say, diabetes or epilepsy, even though they could perform the
essential
functions of the job with treatment. Nor were they entitled to
special
accommodations.
“It was perverse,” said John W. Griffin Jr., a Victoria attorney who
specializes in disability law.
“The better someone manages their disease, the less protection of the
law.”
But last month President Bush signed into law a bill that will no
longer judge people on how well they overcome their disabilities, but
rather the underlying seriousness of their medical problems. It goes
into effect Jan. 1.
“The new law will completely prohibit that Catch-22 argument,” said
Griffin, recalling the testimony before Congress of a diabetic
pharmacist.
He needed a break to eat lunch to control his blood sugar, but the
company refused and fired him.
The federal court dismissed his case, saying the pharmacist wasn’t
disabled because he controlled his diabetes with diet and insulin.
Hearing aid issue
“We want patients to do better,” said Griffin, who recently won a
groundbreaking disability case for a former federal court security
officer in Victoria who was fired because he couldn’t wear his
hearing
aids for his hearing test.
That’s especially important when there is so much attention to
preventive care, he said.
Vision rule unchanged
The new law doesn’t change a key feature of the original ADA — it
still
applies to people who can correct their vision. In other words, just
because you wear glasses or contacts doesn’t mean you’re disabled.
But for those with cancer, kidney disease and other problems, they
can
request modifications, he said.
And many are as simple as permission for diabetics to keep hard candy
in their desk drawer for times when they need a jolt of sugar.
Griffin, himself a diabetic, keeps packs of restaurant-size sugar on
his desk when he needs to bring up his levels.
Another disability expert was surprised with the bill’s bipartisan
support.
It really expands every employer’s responsibility especially in terms
of the accommodations they have to make because so many more workers
will be considered disabled, said Michael Muskat, a Houston
employment
lawyer who represents management.
Coverage hinges on the concept of whether the disability affects a
“major life activity.”
The original law defined that rather narrowly — such as walking,
breathing and sleeping.
But with the new amendment, that also includes learning,
concentrating
and communicating.
“Those are pretty squishy terms,” said Muskat, who once represented a
cruise line that was sued by its passengers over wheelchair access.
The U.S. Supreme Court ended up ruling that the ADA indeed covered
foreign-flagged cruise ships.
So, Muskat said, the new law will make it easier for employees to
claim
a disability if they have attention deficit disorder or a
psychological
disorder, he said.
While the burden is still on employees to request accommodations,
there
are options such as a change in work schedules to allow for
medication,
frequent breaks or even a separate office away from the distractions
of
others.
Lifting and bending also was added to the list of major life
activities, Muskat said, which will likely include those who have had
back and other injuries. Muskat said that means many more people can
ask to be reassigned to less physical duties — as long as bending
and
lifting is not an essential part of the job.
Source:
http://www.chron.com/disp/story.mpl/business/sixel/6048073.html
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