Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

DOJ

DOJ brings the hammer down on the State of Lousiana’s bar licensing authority

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I’m going to be off next week, and so I thought I would blog on this one since it is something I have talked about before.

Previously, I blogged on a South Dakota Supreme Court case and talked about the difficulty a person with MH has in passing the character and fitness gauntlet. I also in a separate entry blogged about a letter from the Department of Justice to the Vermont Commission on Human Rights talking about how four questions that are routinely asked by attorney licensing authorities, who often use the character and fitness format of the national conference of bar examiners, are in violation of the ADA. Now comes this letter from the DOJ to the State of Louisiana telling them that their discriminatory practices have to end.

Full disclosure: I Am President of the National Association of Attorneys with Disabilities and our organization signed on to a letter from the Bazelon Mental Health Center asking the DOJ to take the position that the way the state of Louisiana treated attorneys and prospective attorneys with MH violated the ADA.

In particular, the Department of Justice found that the Louisiana attorney licensure system discriminated against bar applicants with disabilities in the following way: making discriminatory inquiries regarding bar applicant’s mental health diagnosis and treatment; subjecting bar applicant to burdensome supplemental investigation triggered by their mental health status or treatment as revealed during the character and fitness screening process; making discriminatory admissions recommendation based on stereotypes of persons with disabilities rather than upon the actual facts; imposing additional financial burdens on people with disabilities; failing to provide adequate confidentiality protections during the admission process; and implementing burdensome, intrusive, and unnecessary conditions on bar admission based on the individual’s mental health diagnosis or treatment.

The first part of the letter talks about those questions on the character and fitness exam that we talked about in our previous blog involving DOJ’s response to the Vermont Commission on Human Rights. The reader is referred to that particular blog entry discussing why those questions are in violation of the ADA.

However, the state of Louisiana went much further. In particular:
1) Oftentimes, the only justification given by the admission committee for further investigation when a mental health diagnosis or treatment was disclosed was the applicant’s diagnosis rather than any problematic conduct by the applicant. In fact, the DOJ had a smoking gun from five applicants where the admissions committee told them that further inquiry was necessary given the nature of their diagnosis;

2) upon receiving a disclosure of an MH diagnosis, it was not unusual for the admissions committee to insist on an independent medical examination complete with extensive records, all at the applicant’s expense;

3) the admissions committee frequently recommended conditional admission in the event of an MH history even where there was no evidence of conduct suggesting that conditional admission was warranted and even where medical evidence and/or successful years in practice in another jurisdiction were to the contrary. In fact, the state of Louisiana would treat people with substantial misconduct more favorably than people with a history of MH when it came to getting admitted to the bar.

4) the conditional admission was a standard set up and not based upon the facts of the individual applicant. That standard set up often was a longer term of duration than for those who had engaged in serious financial, criminal, or other misconduct.

5) the conditional admission process and the documentation supporting the conditional admission process was public information. Accordingly, private information about applicants who happened to have MH was fully available to the public.

6) the monitoring agreement that went along with the conditional admission was referred to as a probation agreement and the person doing the monitoring was referred to as a probation monitor creating the inference that the applicant had committed misconduct.

7) the standard agreement required certain medical monitoring regardless of whether the facts justified that.

The Department of Justice was not happy with these practices. In particular, they found:

1) the decision to request medical records appeared to be based purely on diagnosis rather than on conduct. Such a decision ignored the admissions committee own statutory mandate that required it to evaluate an applicant’s conduct. It also, since conduct was not an issue, engaged in impermissible stereotyping, which is prohibited by the ADA.

2) the investigations based solely on the diagnosis of MH also violated the ADA because it imposes unnecessary burdens on applicants with disabilities that were not imposed on others. In particular, MH treatment very often involves a discussion of intensely personal issues not related to the practice of law and yet the admissions committee wanted to see all of that in their deliberations. In other words, Louisiana applicants with disabilities, and particularly those with MH issues, are required to disclose information that is highly personal and potentially embarrassing simply because they reveal that they were a person with MH. In essence, what the admissions committee is doing, according to the Department of Justice, is requiring an additional investigation solely because of an applicant’s disability, which violates the ADA.

3) it violates the ADA when the admissions committee recommended conditional admission for applicants where there is no evidence of conduct that warrants such a decision, but is instead based upon a person’s MH diagnosis. The DOJ cited to one case where besides the MH diagnoses, the only negative response concerned a traffic ticket and falling behind on credit card payments. This particular person had been practicing law without incident in another jurisdiction for six years. Such a decision is one based on stereotypes about people with MH diagnosis and violates the ADA. Any such decisions has to be based upon an applicant’s record of conduct and not their MH history.

4) attorneys who were conditionally admitted based upon their MH diagnoses had much more difficulty finding employment, had to share information about their MH diagnoses with employers, were treated differently because their employers and colleagues were aware of their MH status, had to disclose client files and be distracted from the work by inflexible monitoring requests. Also, since the monitoring is so intrusive regardless of whether the actual facts demand it, attorneys with MH have been less than candid with their psychiatrist or have refrained from considering a full range of treatment options. They also have been forced into making career decisions based on their conditional admission status and monitoring requirements rather than on talents and interests.

5) the ADA requires if you are going to conditionally admit someone because of their disability, that an individual analysis be performed and the state of Louisiana did not do that.

6) title II of the ADA, DOJ cited to an appendix here, prohibits imposing additional burdens on persons with disabilities not imposed on others. The state of Louisiana was violating that as well because they required an applicant with an MH history to pay the cost of any independent medical examination required by the committee. Further, once the monitoring agreement is in place, all costs associated with the monitoring agreement has to be paid for by the applicant. In essence, what the state of Louisiana was doing here is that they were passing along the cost of any reasonable modifications along to the bar applicant in violation of the implementing regulations.

7) the public nature of the conditional admission forces a conditionally admitted attorney to disclose a disability to employers and colleagues in order to avoid a presumption that they were conditionally admitted because of criminal history, financial delinquency, or other misconduct. That potentially violates a liberty interest that the individual has in such information (as an aside, I note that employers under title I of the ADA are required to keep disability related information confidential and apart from personnel files). Further, publicizing an applicant’s medical information has disastrous effects. In particular, it enables prospective employers, clients, or opposing counsel to act on stereotyped notions about individuals with MH. It also creates a chilling effect by deterring individuals from pursuing the legal profession and/or seeking treatment, reduces employment opportunities available to lawyers with disabilities by allowing the prospective employers to access information about the disability to which employers would not otherwise be entitled.

DOJ after all this then threw down the hammer insisting that the state of Louisiana cleanup their act so to speak. In particular:

1) Louisiana needs to stop using the character and fitness questions that go to a person’s MH diagnoses;

2) Louisiana needs to focus on applicant conduct and not on their MH diagnosis or treatment for such diagnoses when considering their fitness to practice law;

3) a person’s MH history cannot be used as the basis for determining whether further investigation is warranted. Conduct is the key not diagnoses;

4) conditional admission should be based upon conduct and not based upon stereotypes;

5) conditions of admission must be individually tailored to address the specific situation;

6) Louisiana has to stop imposing additional burdens on applicants with MH, including impermissible costs;

7) Pending applications must be evaluated without consideration of any affirmative responses to the prohibited questions asking about MH history in the national conference of bar examiner report;

8) require Louisiana to go back in time and fix any problems. For example, Louisiana has to take immediate steps to terminate the conditional bar admissions unless there are conduct concerns not mitigated by the applicant’s voluntary disclosure of information related to MH diagnosis and treatment;

9) for individuals whose conditional admissions are terminated, the state of Louisiana has to expunge all documents and records relating to the conditional admission and ensure that any references to the conditional admission are not publicly available;

10) any conditional admissions that are currently in place for nondiscriminatory reason must be reevaluated to ensure that the conditional admissions are tailored to address only the conduct warranting conditional admission and ensure that any and all medical or health-related information is kept strictly confidential;

11) with respect to applicants denied admission as a result of disclosing MH diagnoses pursuant to the prohibited questions, the state of Louisiana has to reevaluate their original applications without consideration of their affirmative responses; invite qualified individual to update their application for admission to the Louisiana bar without additional expense; reevaluate and process the updated applications on a priority basis without considering the MH diagnoses or treatment for that diagnoses;

12) for those applicants who withdrew from the admission process because of their response to the prohibited questions, the state of Louisiana needs to inform those individuals of the revisions with respect to character and fitness and invite them to reapply for admission to the Louisiana bar without additional expense. Also, they need to consider their application without considering their MH diagnoses or treatment and focus only on conduct.

13) PAY COMPENSATORY DAMAGES TO INDIVIDUALS WITH MH SUBJECTED TO DISCRIMINATION DURING THE BAR ADMISSION PROCESS

14) provide to the United States following each admission ceremony for the next five years information regarding Louisiana’s ongoing efforts to comply with title II consistent with the DOJ letter of findings.

Takeaways:

One word WOW!

Seriously, WOW!!!!

1) That said, it is now very clear that states engaged in similar conduct to Louisiana may want to seriously reconsider how they go about their business. The Department of Justice in this letter makes it very clear that they will bring the full weight of the Department of Justice down on attorney licensing authorities engaged in discrimination in violation of the ADA.

2) it may not be so easy for licensing authorities to rely on otherwise qualified/qualified, which the South Dakota Supreme Court did, as a vehicle to undertake a freewheeling investigation of an applicant’s MH history in light of this letter to Louisiana. That said, if I were representing the licensing authorities and wanted to have more freedom with respect to MH investigations, it is certainly the otherwise qualified angle that I would rely on.

3) any entity that licenses professionals needs to read this letter to see how their practices comport with this letter.

4) notice that the Department of Justice is insisting on compensatory damages for bar applicant that were discriminated on the basis of their disability by the state of Louisiana.

5) Clearly the letter is a huge victory for applicants with MH seeking to become attorneys.

Finally, the views contained herein are my own and do not necessarily represent those of any organization that I am affiliated with or am a part of or of any clients that I may represent.

Temporary disabilities and the ADA

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In the first and second editions of my book, understanding the ADA, I cited to the case of Burch v. Coca-Cola Company, 119 F.3d 305 (5th Cir. 1997), for the proposition that temporary disabilities are not protected by the ADA. However, I did say as a preventive manner, it made sense to treat temporary disabilities as you would a permanent disability since what was a temporary disability was uncertain. By the time of the fourth edition, which has just been published by the American Bar Association in the last few months, things were quite a bit different. I still say that a temporary disability is not covered under the Americans with Disabilities Act as amended. However, I go on to say that just how long a temporary disability has to go on to no longer be a temporary disability for purposes of the ADA is far from clear. The EEOC in their final regulations implementing the amendment to the Americans with Disabilities Act does say that it is possible for a disability to arise even if it lasts, or is expected to last, for less than six months. Their view is that the reference to disabilities that are transitory and minor (a natural or expected duration of six months or less), that appears in the amendments to the ADA (ADAAA) is restricted to claims alleging that the person was discriminated against by an employer who regarded him or her as having a disability. The Department of Justice in their recently proposed regulations implementing the ADAAA adopts this view as well.

So, what does the case law say?

Many people have commented on the decision of the Fourth Circuit of January 23, 2014, Summers v. Altarum Institute, Corporation,, _ F.3d_, 2014 WL 243425, which found that temporary disabilities of a certain severity can be protected under the ADAAA, including two people whose blogs are in my blogroll (Jon Hyman and Robin Shea). Since this decision is a huge decision in ADA jurisprudence, I thought I would add my own comments. As has been my practice lately, this blog entry is divided up into different sections: facts, issue, the court’s reasoning, and takeaways. The reader is free to zero in on any or all of the sections.

I
Facts

In this case, the plaintiff, Karl Summers, was a senior analyst for a government contractor, where he conducted statistical research, wrote reports, and made presentations. The defendant did have a policy of authorizing employees to work remotely if the client approved. The particular client that he was working for preferred people to work on site during business hours, but did permit people to work remotely from home when putting in extra time on a project. On October 17, 2011, the plaintiff fell and injured himself while exiting a commuter train on his way to work. He had a heavy bag slung over his shoulder and lost his footing and struck both of his knees against the train platform. He was taken to the hospital where doctors determined that he sustained serious injuries to both legs. In particular, he had fractured his left leg and tore the meniscus tendon in his left knee. He also had fractured his right ankle and ruptured the quadricep-patellar tendon in his right leg. Repairing the left leg fracture necessitated surgery to fit a metal plate, screws, and bone into his tibia. Repairing his ruptured right quadriceps required yet another surgery to drill a hole in the patella and re-fasten his tendons to the knee. His doctors forbade the plaintiff from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bedrest, pain medication, and physical therapy, the plaintiff alleged that he would likely not have been able to walk for more than a year after the accident. While hospitalized, the plaintiff contacted an HR representative of the defendant about obtaining short-term disability and working from home as he recovered. That representative agreed to discuss accommodations that would allow Summers to return to work but suggested that he take short-term disability and focus on getting well again. The plaintiff went ahead and sent emails to his supervisors at his company and at the company that his company was contracting for about how to return to work, even suggested a plan in which he would take short-term disability for a few weeks and then start working remotely part-time and gradually increasing until he was working full-time again. The defendant granted him short-term disability benefits but never followed up on the plaintiff’s request to discuss how he might successfully return to work. Neither did the defendant suggest any alternative reasonable accommodations or even engage in the interactive process with Summers, the plaintiff. For that matter, they didn’t tell the plaintiff that they had any problem with the plan for a graduated return to work, rather on November 30, the defendant simply terminated the plaintiff’s employment in order to place another analyst in his role at the company he was contracted out to. The district court dismissed his claim and the plaintiff appealed to the Fourth Circuit.

II
The Issue

Can a person with a sufficiently severe temporary impairment have a disability under the Americans with Disabilities Act as amended (ADAAA)?

III
The Court’s Reasoning finding that a temporary impairment can constitute a disability under the ADA as amended:

1. The court refers to the definition of a disability under the ADA. It then notes that the ADAAA broaden the definition of disability by explicitly stating that the amendments were meant to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams 534 U.S. 184 (2002), which adopted a strict construction of what a disability is under the ADA and also suggested that a temporary impairment does not qualify as a disability under the ADA (as mentioned above, other cases had held prior to that that a temporary disability was not protected under the ADA). In particular, the ADAAA specifically stated that Congress believed that Toyota Motor set the standard too high as to what constituted a disability for purposes of coverage under the ADA and goes on to say that the definition of disability has to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted.

2. The ADAAA also goes on to say that the term substantially limits has to be interpreted consistently with the liberalized purposes of the amendment to the ADA and instructed the EEOC to effectuate that. The regulations issued by the EEOC implementing the ADAAA said that substantially limits has to be construed broadly in favor of expansive coverage and that the term is not a demanding standard (the DOJ in their proposed regulations implementing the ADAAA takes the same position). The final EEOC regulations (for that matter, the DOJ proposed regulations as well), says that an impairment lasting or is expected to last fewer than six months can be substantially limiting for purposes of proving an actual disability if sufficiently severe, which the plaintiff’s temporary impairment certainly was. After all, the plaintiff was left unable for seven months to walk. Further, without surgery, pain medication, and physical therapy, it would have been far longer.

3. Prior case law of the Fourth Circuit has never suggested that the ADAAA excluded temporary impairments from the definition of disability.

4. Another factor in the plaintiff’s favor that a temporary disability of sufficient severity is protected under the ADAAA, is that the ADAAA as well as the final regulations implementing that act, requires that a disability has to be considered without regard to mitigating measures such as medication, mobility devices, and physical therapy.

5. Interestingly enough, the plaintiff chose not to challenge the dismissal of his failure to accommodate claim. Nevertheless, the court addressed the issue because the issue of whether the plaintiff was otherwise qualified was likely to arise on remand of the plaintiff’s wrongful discharge claim. The court notes that an employee’s accommodation request, even an unreasonable one, typically triggers an employer’s duty to engage in the interactive process to determine a reasonable accommodation in collaboration with the employee.

A few things of note here. First, the court mentioned that even an unreasonable request for reasonable accommodation triggers the interactive process. Therefore, employers do not want to dismiss an accommodation request, however unreasonable it might be, once it is made. Instead, they need to take that as an initial offer. Second, the Fourth Circuit appears to be one of those circuits where there is a separate cause of action for failing to engage in an interactive process. Finally, it would seem on remand, that the defense is in big trouble here because they did not engage in the interactive process with the plaintiff, did not suggest any alternative reasonable accommodations, did not even tell the plaintiff that they had any problem with the plan for graduated return to work before terminating him.

6. While the ADAAA does impose a six month requirement with respect to regarding someone as having a disability, there is no durational requirement for actual disabilities. Accordingly, that suggested no such requirement was intended and not having such a requirement was consistent with legislative intent.

7. Also, the final EEOC regulations were a reasonable interpretation of the ADAAA. In particular, defining disability to include severe temporary impairments is consistent with purposes of the amendment to the ADA since the stated goal of the amendments was to expand the scope of protection available under the ADA as broadly as the text of the ADA permitted. Encompassing temporary disabilities advances that goal. Further, prohibiting employers from discrimination against persons with temporary disability is a burden on the employer for only as long as the temporary disability lasts. That is, temporary disabilities require only temporary accommodations.

8. In light of paragraph 6 and paragraph 7 above, the EEOC’s final regulations implementing the ADAAA were entitled to deference per Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

9. How a person suffers a disability is irrelevant to the analysis of whether a person has a disability under the ADAAA. Further, nothing in the EEOC regulations would suggest that an injury cannot be an impairment and in any event, would most certainly include broken bones and torn tendons, which would substantially limits the major life activity of walking.

III

Takeaways:

1. The Department of Justice proposed regulations implementing the ADAAA, which I discussed last week and which echo the EEOC final regulations with respect to temporary disabilities, would also likely, in light of this decision, be entitled to Chevron deference.

2. How a person becomes a person with a disability under the ADA is completely irrelevant to whether the person has a disability. The only question is whether a person meets one of the definitions of having a disability under the ADA as amended.

3. A request for a reasonable accommodation, however unreasonable that request might be, triggers the interactive process.

4. There seem to be a trend developing that failure to engage in the interactive process is a separate cause of action.

5. A temporary disability of sufficient severity can be protected under the ADA’s actual disability prong.

6. I have said this before, but in light of this decision, it becomes even more imperative for a plaintiff to allege actual disability if they are also alleging regarded as having a disability in their complaint, and especially so if the disability is a temporary one.

6. So what is an employer to do? Good question. It is absolutely true that an impairment that is both transitory and minor lasting less than six months is not protected if a person is alleging that they were regarded as having a disability. That said, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified and so that needs to be factored in as well. Finally, another way/approach is to say that a disability that is transitory AND minor is not protected by the ADA as amended providing the term “minor,” refers to an individual that is not substantially limited in a major life activity as defined by the ADAAA, regardless of how long the impairment is expected to last. The only difference between the two approaches is one of terminology and not of substance since under this approach, “minor,” is being narrowly defined as to whether a person is substantially limited in a major life activity as defined by the amendments to the ADA.

DOJ regulations implementing title II and title III of the ADA amendments act: where’s the impact?

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Last week, the Department of Justice proposed rules implementing title II and title III of the ADA in light of the amendments to the ADA. I’m not going to go into depth here, but I thought I’d go over some particularly significant items in the proposed rule. Of course, what follows is not comprehensive and is not meant to be a substitute for thoroughly reading the rules yourself.

1. What DOJ essentially did was adopt the EEOC regulations implementing title I of the ADA. That includes adding the major life activities added by the EEOC of reaching, sitting, and interacting with others. In particular, the major life activity of interacting with others could have a huge impact on students with disabilities at all levels of education. There are many disabilities which would limit the ability of a person to interact with others, such as: anxiety, autism, possibly ADHD, etc.

2. With respect to physical and mental impairment, DOJ is proposing to add the immune system and circulatory system to those that may be affected by physical impairment.

3. Also, with respect to physical and mental impairment, DOJ is proposing to add a reference to dyslexia as an example of a specific learning disability falling within the phrase, “physical or mental impairment.” The reasoning is that they have become aware that some entities mistakenly believe that dyslexia is not a clinically diagnosable impairment. In fact, the Atlanta Journal-Constitution (to read the full article, unless you are a subscriber to the Atlanta Journal-Constitution, which I am, you will have to jump through some additional hoops to read it), just within the last couple of weeks, had a big article about how school systems are simply refusing to modify their programs and activities and/or offer special services under IDEA on the belief that dyslexia is not a disability (keep in mind that IDEA’s view of a disability is quite a bit different than the view of § 504 of the Rehabilitation Act and the ADA). That said, K-12 schools have to comply with § 504 of the Rehabilitation Act and title II or title III of the ADA as well. Using the phrase, “such as dyslexia” means that there is room for other learning disabilities besides dyslexia that may fall within the definition of specific learning disability. In fact, DOJ fully expects compliance costs to go up with respect to making modifications to accommodate students with learning disabilities.

4. DOJ is proposing to add several rules of construction with regards to determining whether an impairment substantially limits an individual in a major life activity. These rules of construction appear in virtually identical separate sections of the regulations, one devoted to title II and another devoted to title III. Those rules of construction are:

A. The term “substantially limits,” is to be construed broadly in favor of expansive coverage to the maximum extent permitted by the ADA. “Substantially limits” is not meant to be a demanding standard. By saying “substantially limits,” is not meant to be a demanding standard, that is likely to have a huge impact on colleges and universities , K-12, and on testing entities in two respects. First, many students that come into colleges and universities from the IDEA world have to submit new and independent documentation to their colleges and universities in order to receive accommodations from their colleges and universities for their disabilities. Now colleges and universities are going to have to be more careful as to just how much documentation they insist upon. Also, if the IDEA documentation is current or relatively new, one wonders about the viability of insisting upon new independent documentation with respect to the disability in light of these regulations.

Second, many testing entities, such as the LSAT, medical licensing examiners, etc. require extensive documentation before they will accommodate a student with a disability on their exams. That practice of requiring extensive documentation before a student will be accommodated on their exams is now called into question. That said, the testing entities are still under no obligation to fundamentally alter the nature of the test, but it should become much easier now for a person with a learning disability and/or MH issue to receive accommodations on these tests.

B. An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. That is, an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. This is an identical position taken by the EEOC in their implementing regulations of the amendments act. See also paragraph D below.

C. The primary object of attention in cases under title II or Title III of the ADA should be whether the title II or title III entity has complied with their obligations and whether discrimination has occurred and not on the extent to which an individual’s impairment substantially limits a major life activity. Therefore, the threshold issue of whether the impairment substantially limits a major life activity should not demand extensive analysis. Again, this echoes the EEOC view. See also paragraph A above.

D. The determination of whether an impairment substantially limits a major life activity requires an individualized assessment. However, that assessment shall be interpreted and applied to require a degree of functional limitation the lower than the standard for substantially limits that applied prior to the ADA amendments act. This particular paragraph is referring to how the ADA amendments act overruled the case of Toyota Motor, Kentucky v. Williams, 534 U.S. 184 (2002), where the United States Supreme Court held that for a person to be substantially limited in the major life activity of performing manual tasks, that person has to be severely restricted or prevented from performing that major life activity. That standard was then being applied across all disabilities by a variety of cases.

E. The comparison of an individual’s performance of the major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence, though such scientific, medical, or statistical evidence can be used where appropriate. This echoes the EEOC position. Also, see paragraph A above.

F. The determination of whether the impairment substantially limits a major life activity has to be made without regards to mitigating measures. The only exception being, ordinary eyeglasses or contact lenses are considered in whether an impairment substantially limits a major life activity. Ordinary eyeglasses or contact lenses are lenses intended to fully correct visual acuity or to eliminate refractive error. This is a provision actually demanded by the amendments to the ADA. As I point out in the fourth edition of my book, the provision makes sense because with the exception of ordinary eyeglasses or contact lenses, everything else that ameliorates a disability doesn’t cure a disability at all, rather it just compensates for it.

G. An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Again, this echoes the EEOC, and it’s a change required by the amendments to the ADA, which specifically contains this mandate.

H. An impairment that substantially limits a single major life activity need not substantially limit other major life activities in order to be considered a substantially limiting impairment. Again, echoing the EEOC, and making the statement that case law holding otherwise is not correct.

I. The six-month transitory part of the transitory and minor exception that deals with a person being regarded as having a disability does not apply to the, “actual disability” or “record of,” prongs of the definition of disability. That is, the effects of an impairment expected to last less than six months can be substantially limiting within the meaning of this section with respect to a person alleging an actual disability or having a record of a disability. This also echoes the EEOC and gets behind the recent Fourth Circuit case of Summers v. Altarum Institute, Corporation. I would expect that this particular rule of construction would also be a game changer because, especially when it comes to students, they frequently injure themselves and over time can recover quite nicely. Some of those injuries can be quite serious.

In short, I encourage everyone to thoroughly read the proposed regulations and if you so desire, comment on them as well. The time for commenting ends March 31, 2014. In many ways, these regulations are expected because it is important for the EEOC and the DOJ to be on the same page, but since the context is different between DOJ, which has jurisdiction over title II and title III of the ADA, and the EEOC, which has jurisdiction over title I of the ADA, they impact things differently.