Author: Richard H. Adler

The American Disabilities Act (ADA) is acclaimed to be the most sweeping anti-discrimination measure passed by Congress and signed into law since the Civil Rights Act of 1964. Past Federal laws focused upon a disabled person's impairment as the reason for the person being unable to participate fully in society. ADA shifts the focus to the premise that the biggest problem facing disabled individuals is not their own physical or mental condition, but rather the discrimination imposed by those without disabilities.

The ADA seeks to establish a clear and comprehensive prohibition of discrimination in areas of employment, public services, public and private transportation, public accommodations, and telecommunications. As health care providers, you will be called upon to make determinations as to whether or not individuals meet the definition of "disabled" as intended by this Act. Though we are unable, in this single article, to address the comprehensive requirements under each Title of this new law, we thought it appropriate to address the portion of the ADA that defines disability.

WHAT IS A DISABILITY?
The ADA adopts an extremely broad, three-pronged definition of the term "disability." A person is considered disabled if he or she:

1. Has a physical or mental impairment that substantially limits a major life activity;


2. Has a record of such impairment; or


3. Is regarded as having such an impairment.

29 CFR §1630.2(g), 56 Fed Reg 35, 726, 35, 735 (1991).

FIRST ITEM: PHYSICAL OR MENTAL IMPAIRMENT THAT SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY

A. Physical or Mental Impairment

The starting point for analyzing the first prong of the definition is the phrase "physical or mental impairment." Regulations promulgated by the Equal Employment Opportunity Commission (EEOC) interpreting the ADA provide that a physical or mental impairment is any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following:

• Neurological,


• Musculoskeletal,


• Special sense organs (including speech organs),


• Respiratory,


• Cardiovascular,


• Reproduction,


• Digestive,


• Genito-urinary,


• Hemic,


• Lymphatic,


• Skin,


• Endocrine, or


• Any mental or psychological disorder.

29 CFR §1630.3(h), 56 Fed Reg 35, 726, 35, 735 (1991).

The determination of whether an individual has a "disability" is not necessarily based on the name or the diagnosis of the impairment the person has; rather it is based on the effect of that impairment on the life of the individual. Consequently, an impairment that is a disability for one person may not be for another. Determination according to the EEOC will depend on the stage of the disease or the disorder, the presence of other impairments that combine to make the impairment disabling, or any number of other factors. 29 CFR App. §1630.2(j), 56 Fed Reg 35, 726, 35, 741 (1991).

B. Substantially Limits A Major Life Activity

Also key to the first definition is understanding "substantial limitation of a major life activity." EEOC regulations define "major life activities" in terms of such functions as:

• Caring for one's self,


• Performing manual tasks,


• Walking,


• Seeing,


• Hearing,


• Speaking,


• Breathing,


• Learning,


• Working,


• Sitting,


• Standing,


• Lifting, and


• Reaching.

29 CFR §1630.2(i), 56 Fed Reg 35, 726, 37, 535 (1991).

EEOC's regulations define the term "substantially limits" as:

• Unable to perform a major life activity that the average person in a general population can perform; or


• Significantly restricted as to the condition, manner, or duration under which he or she can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity.

29 CFR §1630.2(j), 56 Fed Reg 35, 726, 35, 735 (1991).

The regulations also provide that the following factors should be considered in determining whether an individual is "substantially limited":

• The nature and severity of the impairment;


• The duration or expected duration of the impairment; and


• The permanent or the long-term impact, the expected permanent or long-term impact of the impairment, or the results of the impairment.

29 CFR §1630.2(j), 56 Fed Reg 37, 726, 35, 735 (1991).

In adopting a functional definition approach, the EEOC recognizes that no "determination of whether an individual is substantially limited in a major life activity" can be made in the abstract. Rather the determination must be made on a "case by case basis." 29 CFR App. §1630.2(j), 56 Fed Reg 35, 726, 35, 741 (1991).

C. Mitigating Measures

In determining whether a limitation substantially affects a major life activity, an individual's impairment is to be assessed without considering if mitigating measures result in a less than substantial limitation on a major life activity, i.e., the use of a hearing aid, or taking medication to regulate epilepsy. Despite the fact that an individual may be able to function well within society, he/she is still considered disabled under the Act if his/her ability to function is dependent upon such mitigating measures. 29 CFR App. §1630.2(h), (j), 56 Fed Reg 35, 726, 35, 740-741 (1991).

Temporary Conditions -- A condition does not have to be permanent to qualify as disability. For example, a person with a back problem that lasts for one year may be held to be disabled as defined by the ADA depending on the facts of that particular case. Conversely, a condition that is of very short duration may not qualify as a disability. Truly temporary impairments will not be entitled to statutory protection under the ADA.

D. Limited As To Ability To Work

An individual may be considered "disabled" if the person is limited only in the major life activity of working. The EEOC's regulations focus upon the employability of the individual both in similar and different jobs within the relevant geographic area. An individual does not have to be totally unable to work to be substantially limited in the major life activity of working. As long as an individual is significantly restricted in his/her ability to perform a class of jobs or a broad range of jobs in various classes, the person will be considered substantially limited in working. For example, an individual who has a back condition may be unable to perform any heavy labor job. Because the impairment defeats the individual's ability to perform a class of jobs, the individual would be determined to be substantially limited in the major life activity of working. This would be so even if the individual were able to perform jobs in another class, e.g., the class of semi-skilled jobs. See 29 CFR §1630.2(j), 56 Fed Reg 35, 726, 35, 735 (1991).

SECOND ITEM: RECORD OF IMPAIRMENT

An individual need not have an active impairment to be covered by the Act. If a person has a "record" of an impairment that has substantially limited a major life activity, that person is also covered. A person may have such a record in one or two situations:

• Someone who had a physiological or mental disorder that substantially limited him or her in a major life activity, but no longer has that impairment; or


• Someone who was "misclassified" as having such an impairment.

The rationale behind this prong of the definition is to ensure that people are not discriminated against because of a history of disability. The second situation addresses individuals who have mistakenly been misdiagnosed or misclassified. 29 CFR App. §1630.2(k), 56 Fed Reg 35, 726, 35, 742 (1991).

THIRD ITEM: REGARDED AS HAVING AN IMPAIRMENT

The last prong of the Act's definition of disability applies to an individual "who is regarded by an employer or other covered entity as having an impairment that substantially limits a major life activity." Under the EEOC's regulations, an individual falls in this category if the individual:

• Has a physical or mental disorder that is not substantially limiting, but is treated by others as having one that substantially limits the individual in a major life activity; or


• Has no disorder at all, but is treated by others as having a physical or mental disorder that substantially limits a major life activity.
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    1. It is worthwhile and necessary to become better acquainted with this law because your patient, his/her employer, governmental agencies, etc., will need specific and different types of information from you. The better you understand the nature and applications of the requested information, the more able you will be to fulfill your professional duties to your patient and the more efficiently and effectively you will spend your time.
    
    
    2. The health care provider can no longer assess disability based only on anatomical impairment or a conclusionary opinion that the injury will be permanent. Rather, there will need to be an assessment on how your patient's injury affects his/her functional capabilities to perform usual work and engage in educational, recreational, and family activities.
    
    
    3. A well-formatted and consistently-used pain questionnaire will assist you in obtaining relevant information from your patient in areas regarding lifting, reading, concentrating, working, driving, sleeping, recreation, walking, standing, travelling, sexual intimacy, etc. Such questionnaires, when used together with objective physical measurements, are considered the most reliable assessment of function and disability in the area in which there is no universal norm. For more information on pain questionnaires, see our September 1991 Article Of The Month.
    
    
  29 CFR App. §1630.2(l), 56 Fed Reg 35, 726, 35, 742 (1991).
  
  The breadth and importance of this prong of the definition of disability cannot be over emphasized. While the first two prongs of the definition require an individual to actually have either an impairment that substantially limits major life activities or a record of such impairment, the third prong focuses on the beliefs and acts of others. Thus, an individual can be considered disabled even though he/she does not have, nor has ever had, any physical or mental impairment. Examples may include a severe burn victim, someone with significant physiological cosmetic disorders, or individuals with controlled diabetes or epilepsy. Even though qualified, these people are often denied jobs as a result of negative attitudes and misinformation. Persons with prior resolved injuries are often denied employment opportunities because of employers' fears of future injury or increased costs. For example, an applicant with a prior resolved back injury, or one whose x-ray shows a back abnormality, may be rejected from jobs involving heavy lifting, despite the absence of any symptoms. If an applicant did not view himself/herself as disabled under item one or two of the Disability definition, this person would be regarded as disabled under prong three, and hence protected under the ADA.
  
  Our reading of the ADA suggests various medical-legal implications for health care providers in properly understanding and applying the term "disability."
  
  As with any new comprehensive law, it is generally the intent of the legislature to regulate and create some degree of uniformity; however, we can also expect new issues and questions to arise that will not be initially addressed by the law. As questions arise for you and your patient in the area of disability assessments, we will try to help. Simply give us a call.
  
  Very truly yours,
  ADLER GIERSCH, P.S.
  
  Richard H. Adler
  Attorney at Law
  
  ¹WE ARE GRATEFUL FOR THE WORK OF CONTRIBUTING AUTHOR, MARGARET L. ENNIS, ATTORNEY AT ADLER GIERSCH, P.S.
  
  THE ADA WAS ENACTED INTO LAW IN 1990; HOWEVER, THE LAW DID NOT GO INTO EFFECT IMMEDIATELY. THE EMPLOYMENT ANTI-DISCRIMINATION PROVISIONS WENT INTO EFFECT JULY 26, 1992, FOR EMPLOYERS WITH 25 OR MORE EMPLOYEES. THIS SECTION OF THE LAW WILL APPLY TO ALL EMPLOYERS WITH 15 OR MORE EMPLOYEES AS OF JULY 26, 1994. THE PUBLIC SERVICES PROVISIONS WENT INTO EFFECT IN JANUARY 1992. THE PROVISIONS RELATED TO PUBLIC ACCOMMODATIONS OPERATED BY PRIVATE ENTITIES WENT INTO EFFECT ON JANUARY 26, 1992. THE TELECOMMUNICATION PROVISIONS WENT INTO EFFECT ON JULY 26, 1992.