An about-face on disability

The Equal Employment Opportunity Commission has issued final regulations

that change previously issued guidance regarding people with disabilities.

The new regulations involve the Americans With Disabilities Act and

"mitigating measures" that individuals use to eliminate or reduce the effects

of an ailment. Examples of mitigating measures include medication and devices

such as hearing aids, walkers or canes.

"This revised guidance clarifies the legal standards for determining

when a person who uses mitigating measures meets the ADA's definition of

"disability,'" said Ida Castro, EEOC chairwoman.

The new rules rescind portions of an EEOC-issued interpretive guidance

that were not consistent with Supreme Court rulings made last year. In two

separate cases in 1999, the court ruled that any mitigating measures a person

uses to eliminate or reduce the effects of an ailment must be considered

in determining whether an individual has a disability and whether that individual

is entitled to ADA protection.

It's not enough to say that if a person has, for example, diabetes,

then the person has a disability. You have to take into account the medication

that the person is taking or any other aids that the person is using to

function normally. So if a person has diabetes that is fully controlled

by medication, then it is not reasonable for that person to claim to be

disabled as defined under the ADA or entitled to its protections.

Previous guidance by the EEOC said that mitigating measures should not

be considered in determining whether an individual has a disability. So

previously, a person with, say, high blood pressure might automatically

have been considered disabled. The EEOC's new regulations indicate that

the effect of medication on a person's ability to function must be considered.

The EEOC is advising its field officers to get the word out that each

case has to be evaluated individually.

The EEOC makes it plain that it is not saying that someone who takes

medicine for a particular condition is not considered disabled. What it

is saying is that the effect of the medicine on that individual's ability

to function has to be evaluated. The bottom line is that an individual can

still experience a substantial limitation in performing a major life activity

despite or because of the use of medicine or a walker, for example.

Although federal employees are not directly covered by the ADA — they

are technically covered by the Rehabilitation Act — in the past, the EEOC

has issued guidance making it clear that federal workers are to be treated

as if they are covered by the ADA, and any rulings by the EEOC concerning

the definition of disability under the ADA will apply to federal workers

seeking such coverage. The Supreme Court decisions and the new EEOC regulations

lessen the protection that federal workers will have under the provisions

of the ADA.

—Zall is a retired federal employee who since 1987 has written the Bureaucratus

column for Federal Computer Week. He can be reached at miltzall@starpower.net.