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Cancer patients now protected under ADA

terato's picture
terato
Posts: 384
Joined: Apr 2002

After attempts to amend Title VII of the Civil Rights Act to include cancer survivors (H.R. 1294/H.R. 1546) failed in the late 1980s, an expansion of the Americans with Disabilities Act (S. 3406) was signed into law this September to afford employment protection for cancer patients. What follows is the most clear and concise explanation of "our" new protection against employment discrimination I could find on the web:

"ADA Expanded, Resulting in Significant Increase in the Number of Employees Who Are Considered Disabled

On September 25, 2008, President Bush signed into law the ADA Amendments Act of 2008 (the Act), which significantly expands the Americans with Disabilities Act (ADA). Halleland Lewis Nilan & Johnson attorneys Joe Schmitt and Mark Girouard warn that the Act, which takes effect on January 1, 2009, will result in a profound shift in the landscape of disability accommodation and discrimination claims in the workplace.

Most significantly, the Act requires the determination of whether an employee or job applicant's impairment is a disability to be made without regard to any mitigating measures. As a result, an employee with a condition that is controlled by medication - such as diabetes, epilepsy, or cancer - is now considered disabled, regardless of the medication's mitigating effects. Similarly, disability determinations must now be made without regard to devices such as prosthetics, hearing aids, or cochlear implants. A related section of the Act provides that impairments that are episodic or in remission are disabilities, so long as they would substantially limit a major life activity if they were active.

The Act also lowers the bar for employees to prove that they were discriminated against for being "regarded as" having a disability. At the same time, the Act clarifies that "regarded as" claims cannot be based on transitory and minor impairments, where the impairment is expected to last less than six months. In addition employers are not required to provide accommodations to individuals who are regarded as disabled, an issue over which the federal courts were previously divided.

With the Act going into effect on January 1, 2009, employers should immediately review their existing handbooks, policies and procedures - including those related to hiring, medical testing, accommodation, leave, and termination - to make sure that any definitions are consistent with the Act. Employers who do not have a formalized process in place for addressing reasonable accommodation requests should consider implementing one. Employers should also consider training hiring managers, supervisors, and human resources personnel about reasonable accommodations and the new definition of disability, as many additional employees and job applicants are now likely to request accommodation.

For more information contact Joe Schmitt at jschmitt@halleland.com or 612-204-4140, or Mark Girouard at mgirouard@halleland.com or 612-204-4108."

http://www.hlnsj.com/index.cfm?section_id=b95832e3-1143-5852-6680-0fe1fa8e62e9

http://www.ada.gov/

http://www.whitehouse.gov/news/releases/2008/09/20080925-8.html

artizan's picture
artizan
Posts: 60
Joined: Oct 2008

This is interesting. Seems like a great thing for those who need it. I know one of the posts spoke of her mental impairment due to chemo brain and wondered what would happen if it got so bad she could not work. It is a concern.

terato's picture
terato
Posts: 384
Joined: Apr 2002

"On September 25, 2008, 18 years after his father signed the Americans with
Disabilities Act of 1990 into law, President George W. Bush signed the
Americans with Disabilities Act Amendments Act of 2008 ("ADAAA" or "Act").

The ADAAA goes a long way in restoring protections that were promised by the
Americans with Disabilities Act of 1990, but rescinded by unfavorable
Supreme Court decisions that interpreted the protections of the statute
narrowly.

When the ADA was passed in 1990, it adopted the definition of disability
used in the Rehabilitation Act of 1973, such that an individual was deemed
to have a disability if he or she had a physical or mental impairment that
substantially limited one or more major life activities, had a record of
such an impairment, or was regarded as having such an impairment.

However, the Supreme Court, in 1999, narrowed the definition of
disability in their holding in *Sutton v. United Air
Lines
*. In *Sutton*, the Court held that when determining under the ADA if an
individual is disabled by an impairment that is substantially limiting,
consideration must be given to the effects of mitigating measures such
as corrective lenses, medications, hearing aids, and prosthetic devices.

In 2002, the Supreme Court went one step further in *Toyota v.
Williams
* by interpreting the word "substantially" contained in the ADA's definition
of disability to mean "considerably" or "to a large degree" and redefined a
"major life activity" as one that must be of central importance to most
people's daily lives.

The ADAAA rejects the holdings in *Sutton* and *Toyota* as well as portions
of the EEOC's ADA regulations. The ADAAA retains the ADA's basic definition
of "disability" as an impairment that substantially limits one or more major
life activities, a record of such an impairment, or being regarded as having
such an impairment. However, it changes the way that these statutory terms
should be interpreted in several ways. More specifically the ADAAA:

- directs the EEOC to revise that portion of its regulations defining the
term "substantially limits";
- expands the definition of "major life activities" by including two
non-exhaustive lists:
1) the first list includes many activities that the EEOC has recognized
(e.g., walking) as well as activities that EEOC has not specifically
recognized (e.g., reading, bending, and communicating);
2) the second list includes major bodily functions (e.g., "functions of
the immune system, normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine, and reproductive
functions");
- states that mitigating measures other than "ordinary eyeglasses or
contact lenses" shall not be considered in assessing whether an individual
has a disability;
- clarifies that an impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when
active;
- provides that an individual subjected to an action prohibited by the
ADA (e.g., failure to hire) because of an actual or perceived impairment
will meet the "regarded as" definition of disability, unless the
impairment is transitory and minor;
- provides that individuals covered only under the "regarded as" prong
are not entitled to reasonable accommodation; and
- emphasizes that the definition of "disability" should be interpreted
broadly.

The ADAAA becomes effective as of January 1, 2009."

sunrise4vic
Posts: 4
Joined: Aug 2009

I think this information is excellent and would love to know more on how to fight healthcare companies that try to avoid paying doctors for pre-existing conditions after cancer treatments. Due to total body radiation my sinus are affected and now have bad allergies that are more enhanced than the normal person. Because Allergy Immunology injections shorts are a debate in handling allergic disordes and are very successful treatment, some insurance companies are viewing this as expermental even though it has been proven to be more effective treatment by Allergy & Asthma Academy.

I am doing research and have been able to find answer from the department of healthcare and NY department of labor but you still have to fight with these insurance companies and it all depends on the healthcare plan your employer provides. It's been a challenge as a survivor of 19 years but it's great to know new laws are still being put in place.

Thank you for what is being shared as I have also had concerns should I have had to leave a job due to healthcare issues and fighting the healthcare insurance companies. I would like to learn more at my email is victoriabarrow@msn.com

terato's picture
terato
Posts: 384
Joined: Apr 2002

I have been saying for years that discrimination against those with pre-existing conditions is no different than discrimination because of race, gender, creed, or ethnicity, and would be illegal in any other situation. Now, that people with chronic illness are supposed to have ADA protection in the workplace, why shouldn't this apply to applications for health coverage? Under any of the proposed health insurance reform plans, there are clauses prohibiting denial of coverage due to pre-existing conditions, which should resolve the problem. However, any reform will not take effect until 2013, at the earliest, which fails to help those in desperate need now.

Will this expansion of ADA to include those with chronic illnesses require a test case to establish legal precedent? Since the ADA expansion has just taken affect in January, no litigation has yet surfaced to test where it will reach. However, it does open the door to such cases. A class action suit against health insurers, like the one against cigarette companies, might be "just what the doctor ordered".

Love and Courage!

Rick

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