EEOC Proposed ADA AA Regulations

[ajasfolks2]

http://allergy.hyperboards.com/action/view_topic/topic_id/13131

stlalohagal:

Since everyone looks to the EEOC for the interpretation of the ADA and now the new ADA AA, everyone's been in sort of a 'holding' pattern for what the interpretations will include.  This is a link to the PROPOSED ADA AA Regulations from the EEOC. 

http://www.eeoc.gov/press/9-16-09f.html

PLEASE consider contacting the EEOC somehow (phone, email, snail mail, etc.) and expressing our input relative to including LTFA and how they should be added to the list and what we have all faced, good and bad.  They need to hear our voices to be included.  If it is still only in a 'proposed' status it can still be added.  It also has a Q & A section
( http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html )

for public input and we have 60-days apparently from 9-23-09 to do just that.

[ajasfolks2]

CMdeux:

The Equal Employment Opportunity Commission (EEOC) is super important for EVERYONE with LTFA-- not just parents and kids in public schools.

In fact, this might be MOST important to adults and young adults.

Though if LTFA are successfully added formally here, this would give TREMENDOUS leverage for everything from accommodations during job interviews to safer air travel and better accessibility in hotels and restaurants. Yes, Yes, Yes!!!

We can do it, everyone!!

ajasfolks2:

13. Are there impairments that will consistently meet the definition of disability?

Yes. The proposed regulation says that some impairments due to certain characteristics associated with them will consistently meet the definition of disability when analyzed in light of the ADAAA's directives that:

the term "disability" shall be construed broadly
an impairment's substantial limitation on a major bodily function is sufficient to constitute a disability
the ameliorative effects of mitigating measures (other than ordinary eyeglasses or contact lenses) shall be disregarded
impairments that are episodic or in remission are disabilities if they would be substantially limiting when active
The proposed regulation identifies the following as examples of impairments that consistently will meet the definition of "disability": deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. The individualized assessment of whether a substantial limitation exists can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability. This is not an exhaustive list of examples, which means that impairments not listed in the proposed regulation could still consistently meet the definition of disability.

The proposed regulation also provides examples of impairments that may be substantially limiting for some individuals but not for others. These types of impairments, which include asthma, back and leg impairments, and learning disabilities, may require somewhat more analysis to determine whether they are substantially limiting for a particular individual than those impairments that consistently meet the definition of "disability," although the level of analysis required still should not be extensive. (See proposed regulation sections 1630.2(j)(5) and (6), and corresponding Appendix section 1630.2(j).)

I see them potentially putting LTFA ( anaphylaxis ) in with asthma in the lower paragraph above.  It would be better than NOTHING.

But this is what I am thinking might happen?

Might need to work here on our wording and argument as to where anaphylaxis should be included and why in that section (and other sections?).

Just my quick read on it this morning. 

[ajasfolks2]

ajasfolks2:

This needs to be brought to FAAN's attention ASAP as well as any other food allergy associations -- there needs to be concerted write-in (comment) effort nationwide to get LTFA/anaphylaxis added.

Who here can help with this contacting of orgs and would like to help divide up list and get the word out? 

stlalohagal:

I just contacted FAAN and will follow up with them on Monday.

WHY THIS IS IMPORTANT

This was correspondence sent to us from the OCR attorney handling our case this summer:
____________________________________________________________ 

I recently had occasion to review the materials at the following links.  I thought some of this information may be useful to you.  In particular, the comments by Chris Kuczynski clarifying the meaning of some of the provisions of the ADA Amendments Act (ADAAA) seemed pertinent to some of the questions you've encountered in dealing with your school district regarding the applicability of Section 504 to your child.  Please recall that, as specifically provided in the ADAAA,  the definition of "disability" is the same for the ADA and for Section 504, so Mr. Kuczynski's comments interpreting and clarifying the definition are applicable to situations involving Section 504.  Also, while Mr. Kuczynski's remarks were shared in the context of discussing proposed revisions to the regulations the Equal Employment Opportunity Commission applies to discrimination in employment, the definition regarding who is a person with a "disability" and who is not is the same whether you're applying it to employment, education, or whatever.


I've also provided a summary of Mr. Kuczynski's credentials and the basis for his authority to speak on this subject.


EEOC Notice Concerning the ADA Amendments Act of 2008  http://www.eeoc.gov/ada/amendments_notice.html

Chris Kuczynski, Assistant Legal Counsel, OLC, EEOC Remarks at the June 17, 2009 EEOC Meeting discussing the ADA Amendments Act of 2008  http://www.eeoc.gov/abouteeoc/meetings/6-17-09/kuczynski.html

Review most recent version of the DOJ Disability Rights On-Line News at:  http://www.ada.gov/disabilitynews.htm



Christopher J. Kuczynski

Chris Kuczynski became Assistant Legal Counsel and Director of the ADA Policy Division in February 1997. He oversees the development of agency regulations, enforcement guidance, and technical assistance documents interpreting Title I of the Americans with Disabilities Act. Currently, he is overseeing development of the regulations to implement Title II of the Genetic Information Non-Discrimination Act of 2008, which prohibits employers from using genetic information about applicants and employees in making employment decisions and limits the right of employers to acquire and disclose such information, and regulations implementing provisions of the ADA Amendments Act of 2008. Chris has made hundreds of presentations on the ADA to diverse audiences, including human resources and EEO professionals, supervisors and managers in the public and private sectors, and plaintiff and defense counsel.

From January to October 2003, Chris was a Special Assistant to former EEOC Chair Cari Dominguez, and from October 2003 through April 2004, he was Associate Director of the White House Domestic Policy counsel. Chris was a trial attorney in the Disability Rights Section of the U.S. Department of Justice from July 1993 until February 1997, and was a litigation associate for three years with a major Philadelphia law firm. He has a B.A. in English from Villanova University (from which he received the School of Liberal Arts and Sciences 2007 Alumni Medallion for his work in the field of civil rights), a J.D. from Temple Law School, and an LL.M. from Yale Law School.

maeve:

Here's a link to the regulations.gov page where you can submit comments.

http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480a4f0d4

. . .

Here's a transcript from the California town hall. There were spokespeople from epilepsy groups, diabetes groups, etc. However, there was nobody from FAAN speaking about food allergies.

http://www.eeoc.gov/eeoc/events/transcript.cfm

. . .

The EEOC has proposed new regulations to implement the ADA Amendments Act of 2008. The ADAAA expanded the definition of disability to include conditions that can be episodic or hidden, such as epilepsy, diabetes, and food allergies. The regulations as proposed do not mention food allergies specifically. It is important that they do so. It will help ensure that schools provide accommodations to ensure the safety of children with food allergies. Currently, schools use the language of the ADA in applying Section 504. If you know someone with food allergies or epilepsy or diabetes, please take the time to comment on the regulations.

Link to info on the proposed regulations
http://www.eeoc.gov/policy/docs/qanda_adaaa_nprm.html

Link to comment on the regulations
http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480a4f0d4

[ajasfolks2]

More.

stlalohagal
(quoting maeve & then responding):

Here's a transcript from the California town hall. There were spokespeople from epilepsy groups, diabetes groups, etc. However, there was nobody from FAAN speaking about food allergies.

http://www.eeoc.gov/eeoc/events/transcript.cfm

And they won't.  Talked with them directly and they don't see how it's relevant.

[ajasfolks2]

ajasfolks2

Found this at EEOC.  Would be nice if there is similar via Dept of Ed or USDA . . . I cannot recall if there is.  We need to get link here, if exists.  (Or point me to link is we've already got it here, please!)


This is great Q&A at EEOC and quite a bit is relevant &/or helpful for DOE and Schools and USDA as well.


http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm

How do the regulations define the term "physical or mental impairment"?

The regulations define "physical or mental impairment" as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin and endocrine. They also cover any mental or psychological disorder, such as intellectual disability (formerly termed mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities. [Section 1630.2(h)]

The definition of "impairment" in the new regulations is almost identical to the definition in EEOC's original ADA regulations, except that the immune and circulatory systems have been added to the list of body systems that may be affected by an impairment, because these systems are specifically mentioned in the ADAAA's examples of major bodily functions.


Here is link to the Federal Register Regulations
http://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as

[ajasfolks2]

If you/anyone know(s) of similar info for DOE/USDA and Section 504 as pertains to schools, please post link here & I'll be sure to also get it into appropriate RESOURCE threads.