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