ADA Compromise on Tap
Author: By Bonnie Conrad, Julie Davidson and Melissa Turley, cyberFEDSDate: May 30, 2008
Disability advocates and business leaders are close to reaching a proposed deal to recommend language to Congress that would resolve their conflicts over the ADA Restoration Act.
The proposed language, which could still change, would redefine "disability" to be any actual, past or perceived physical or mental impairment that "substantially limits a major life activity" and then defines this phrase to mean "materially restricts a major life activity," according to details released by the American Association of People with Disabilities.
The proposal also includes a non-exhaustive list of covered major life activities, and defines the operation of major bodily functions as a covered major life activity.
* States that mitigating measures should not be considered when determining whether an impairment materially restricts an individual's major life activity, including medical devices, assistive technology, behavior adaptations, reasonable accommodation or auxiliary aids. This would reverse the ruling in the Sutton vs. United Airlines decision by the U.S. Supreme Court that "mitigating measures" should be taken into account when determining whether a plaintiff is disabled.
* Excludes minor impairments and impairments with an actual or expected duration of six months or less as disabilities.
* States that employers would not need to provide reasonable accommodations to employees they regard as disabled.
* Includes a section with examples of major life activities such as caring for oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. The high court, in Toyota vs. Williams, ruled a disability must "substantially limit [an individual's] daily life activities," not just abilities at work. The case involved the inability of an assembly worker with carpal tunnel syndrome to do her job.
Both Michael Layman, manager of employee and labor relations for the Society for Human Resources Management, and Michael Imparato, AAPD CEO and president, say technical details are still being worked out, but they are confident a compromise will be reached soon, possibly within two weeks.
"We know the clock is ticking and we want to move forward with a deal," Layman says. "We are close to coming up with a proposal that will be fair to both employers and employees."
Imparato says employee and business advocates are "negotiating in good faith" and are "very cognizant" of the need to come up with a deal that has bipartisan support.
The compromise, he says, could be introduced as a separate bill or as an amendment to the current one.
Rep. Steny Hoyer, D-Md., who helped craft the ADA in the 1990s, has been urging stakeholders to come to an agreement on the legislative language.
"Our hope is to have something to bring to the floor this summer, although timing will be dependent on continuing discussions with the invested communities," a Hoyer spokeswoman says.
There is some debate over whether the proposed changes, once they are finalized, would apply to the Rehabilitation Act, which covers federal employees.
An aide to the House Education and Labor Committee previously said that, because the 1992 amendment to Section 501 of the Rehabilitation Act directly cites the ADA, any changes would apply to Section 501. But some experts say that unless the Rehabilitation Act is specifically mentioned, the changes would be open to judicial interpretation.
"One of the reasons that issue is not front-and-center is we are not having as many issues with the interpretation of the Rehab Act," says Imparato.
