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January 22, 2009

Definition of disability expanded

Under a new federal law, some employees at Pitt may be eligible for job-related accommodations based on disabilities that previously were not covered by the 1990 Americans With Disabilities Act (ADA).

Whether the changes in the law will have a significant impact at Pitt remains to be seen, officials here said.

ADA prohibits discrimination on the basis of disability, and it requires institutions to provide “reasonable accommodations” for those otherwise qualified individuals with a disability who request accommodations.

In September, President Bush signed into law the ADA Amendments Act (ADAAA) of 2008, which went into effect Jan. 1. The amendments act stipulates that if an employee has an impairment that when active would limit substantially a major life activity, then he or she is disabled and protected under the new law even if the condition is in remission or the employee is not suffering from an episode.

The Senate Managers Report, which was issued by Congress as a companion document clarifying and summarizing ADAAA’s intent, states that transitory illnesses or injuries (those lasting less than six months) remain outside the scope of the ADA. However, the amendments clarify that a chronic condition or impairment that is “episodic or in remission is a disability if it would substantially limit a major life activity when active,” even if acute episodes are shorter than six months.

Examples of such medical conditions, the report states, include multiple sclerosis, lupus, epilepsy, a seizure disorder, diabetes and muscular dystrophy.

According to Pitt law school Dean Mary Crossley, the new act represents the U.S. Congress’s attempt to increase the number of people who are protected by ADA and to restore ADA’s original intent, which Congress maintained had been watered down by a series of U.S. Supreme Court decisions.

The amendments act specifically targets the Supreme Court for rulings that created “an inappropriately high level of limitation necessary to obtain coverage under the ADA.”

“While a number of Supreme Court decisions from the past decade construed the legislative definition of ‘disability’ narrowly in order to avoid creating an overly expansive protected class, in the ADAAA Congress explicitly states that the definition ‘shall be construed in favor of broad coverage of individuals,’” said Crossley, whose specialization is disability discrimination law. “In effect, the ADAAA represents Congress’s correcting the Supreme Court’s mistaken reading of what Congress meant to do when it passed the ADA originally.”

Under the ADA Amendments Act of 2008, the definition of disability continues to be “a physical or mental impairment that substantially limits one or more major life activity.” Those activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, communicating and working.

The new act adds concentrating and thinking to the list of activities.

The amendments also expand the ADA’s original non-inclusive list of major life activities specifically to include the operation of major bodily functions, such as normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, immune system and reproductive functions.

“The law is relaxed. There’s no doubt about it,” said John Greeno, assistant vice chancellor for Employee Relations and Labor Relations.

“It’s likely there would be more employees covered, and more occasions, probably, when we need to look at what accommodations may be reasonable. I would hesitate to guess how many more. Right now, we get about eight-10 employee inquiries a year.”

At Pitt, as elsewhere, the onus is on the individual to self-report a disability to the employer, provide medical documentation and request accommodations; the University is under no obligation to seek out disabled individuals.

Under the law, a reasonable accommodation is defined as a modification or adjustment to a job or the work environment that will enable a qualified employee or applicant with a disability to perform essential job functions.

“I hesitate to give too many examples, because we don’t want to identify any individuals, and we also do not want anyone to think: If this department did it, then, of course, my department would be willing to do it, too,” Greeno said. “We don’t know that: It’s always a case-by-case basis. What is reasonable for one department might be a hardship for another and, of course, it depends on the job itself.”

He said an example of a reasonable accommodation is a schedule adjustment for people who have conditions that make it difficult for them to adhere to the normal workweek schedule.

“So adjustments can be made for that, if it’s the kind of job that doesn’t require a certain set of hours, and if the department can accommodate that adjustment,” Greeno said.

He added that there also is precedent for employees to be moved to a different location within a department to improve accessibility or as a result of reactions to environmental factors.

“The most important consideration is whether the employee can fulfill the essential job functions and whether a reasonable accommodation will help ensure that the employee can,” Greeno said. “Regardless of whether you have a disability or not, you must be able to perform the essential functions of the job. Some people may have an obvious impairment of a major life activity — like an amputee who gets along on crutches, for example — which would have no effect on their essential job functions,” precluding the need to ask for accommodations, he added.

Those essential functions are outlined in Pitt’s job descriptions, he noted.

There are several issues employees should consider when deciding whether to self-identify as disabled, Greeno said.

“Unless there’s a connection between your impairment and your job functions, and there is a reasonable accommodation that would allow you to perform your functions, why self-identify?” he said. “From the University’s perspective, your disability is irrelevant as long as you’re performing your essential job functions just fine.”

Greeno also noted that, in some cases, filing a request under ADAAA may not be the appropriate vehicle. For example, certain provisions in the federal Family and Medical Leave Act provide 12 weeks of unpaid leave for a serious medical condition. (See related story, this issue.)

Pitt also offers a long-term disability program for those who qualify.

“We do over time have tragic cases where people have cancer, for example. At some point, potentially, there will come a time when they are unable to do enough and it becomes a hardship on the department and their colleagues — that’s a very difficult situation,” Greeno said.

“We certainly do everything we can to work with that person. If this is discussed upfront with a supervisor and it doesn’t just suddenly show up in someone’s absenteeism, then you have a pretty good chance of everyone coming to terms with that situation in a way that satisfies everyone. That’s why we have long-term disability benefits. It’s not like you’re out on the street with no income. We provide benefits that allow them to continue to have income and medical insurance,” he said.

Greeno recommended that employees also be aware of privacy standards when considering whether to self-identify as disabled.

“The way we look at it is a need-to-know basis, a reasonable need-to-know basis. We don’t want it to go anywhere more than that,” he said.

However, that most likely would include informing the employee’s supervisor of a disability, once the disability has been self-identified, documented medically and confirmed by the University.

“Most of the time the University is looking for a way to define a condition in terms of its effect on job performance. That’s the most important thing from a supervisor’s standpoint,” Greeno noted.

Supervisors, however, should be wary of making judgments about disabilities on their own, he added.

“It’s not something where we want supervisors making detailed decisions on what is or is not a disability. That’s why we’re here to help. If an employee approaches a supervisor, we highly recommend the supervisor contact Employee Relations. We can help with that discussion,” Greeno said. “But I would add, if it’s obvious that a physical impairment might be a factor or become a factor in a person’s ability to perform the essential functions, it may be appropriate for the supervisor to approach that individual — strictly because of performance issues. You never inquire as to a disability. Again, it’s irrelevant, unless it might be affecting your ability to perform the job.”

In such a case, Greeno encourages an open discussion to see if the individual feels that the impairment is affecting performance and, if so, if the employee wants to request an accommodation.

“That’s a give-and-take, case-by-case interactive process,” Greeno said. “If they do have a request and it’s reasonable and it would help, then of course it’s going to be considered and we would try to do it.”

Supervisors are trained in basic ADA requirements through online tutorials on preventing employment discrimination in the workplace and ensuring a respectful workplace, he said.

Employees at Pitt have two channels for initiating a disability request: contacting Employee Relations in Human Resources or the office of Disability Resources and Services (DRS), which is directed by Lynnett Van Slyke.

Many requests for accommodations ordinarily can be handled by Employee Relations, but more often employees are directed to DRS, which has much more experience in dealing with disability issues, Greeno acknowledged. “We have regularly benefited from Lynnett’s assistance. Even though DRS, as a division in Student Affairs, deals primarily with students, her office has a nice process in place, with guidance for the employee and medical forms catered to specific disabilities and lots of experience with reasonable accommodations,” he said. “But we’re not sure how much longer with the changes in the law we’re going to be able to continue doing that. We’re in uncharted waters right now in terms of numbers of people and [qualifying disabilities].”

The staff handbook likely will not need to be updated based on the new law because it makes no attempt to define a disability, nor will there be a need for disseminating the information in other media, Greeno added.

Sherry Shrum, chair of the Staff Association Council’s benefits committee, said her committee will look into the changes to ADA with an eye toward informing Pitt employees. “We will be issuing a statement encouraging the University to make the changes known to department heads and staff members. The benefits committee is particularly concerned that staff members are made aware of the policy changes since it may significantly impact a number of them.”

DRS director Van Slyke agreed with Greeno that’s it unclear how the recent ADA amendments will affect Pitt. “But, because our review process is done on a case-by-case basis and because there is a grievance process already in place, we’re prepared.”

She predicted her staff may see even more clients than the 700 students who met with her staff at least once last academic year. “That number probably will go up, but not necessarily drastically. At this point, we just don’t know,” she said.

Nationally about 10 percent of the undergraduate student higher education population is classified as disabled, Van Slyke noted.

The ADA changes probably will assist more students in seeking accommodations by expanding the number of medical conditions that could constitute a disability and by lessening the stigma attached to claiming a disability, she said.

However, since there has been no change to the basic definition of a disability as a “physical or mental impairment” — only an expansion of the conditions that may qualify as a disability — institutions and disability services providers can continue most existing practices, Van Slyke noted. She acknowledged, however, that her office’s regulations on whether particular medical conditions are covered by the amendments may have to be updated with advice from Pitt’s Office of General Counsel.

Criteria for the source, scope and content of the documentation differ by disability. “That’s where our system of reviewing requests on a case-by-case basis really helps us,” she said.

In an academic environment, the basic questions remain the same: Is the individual classified as disabled and is the accommodation requested reasonable? she said.

As it applies to students, a reasonable academic accommodation is a modification or adjustment that allows an individual to gain equal access and have equal opportunity to participate in the University’s courses, services, activities and facilities.

Notices of DRS services are included in recruiting and admissions materials as well as residence hall information packets. Those materials currently are under review.

Pitt has been relying on the Association on Higher Education and Disabilities for guidance. The AHEAD consortium helped Pitt develop its standard set of criteria for documenting disabilities, Van Slyke said.

“Based on their recommendations, what we’re bracing for is that shift in focus from diagnostic medical evidence of disability to an emphasis on self-reporting and our interviews. It’s an interactive process,” often in conjunction with a supervisor in the case of an employee, Van Slyke said.

There are no changes in the rights of the University to protect its academic integrity under the new ADA amendments, she noted.

As the Senate Managers Report states, “A university would not be expected to eliminate academic requirements essential to the instruction being pursued by a student, although the school may be required to make modifications in order to enable students with disabilities to meet those academic requirements.”

—Peter Hart


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