Agenda Brief Overview of ADA, as amended by ADAAA of 2008 Recent - - PDF document

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Dealing with Disabled Staff and Students: Emerging Legal and Scientific Issues Under the ADAAA of 2008

Jeffrey J. Nolan, Esq. Dinse, Knapp & McAndrew, P.C. Jodi Litchfield, A.A. Middlebury College

Agenda

• Brief Overview of ADA, as amended by

ADAAA of 2008

• Recent Legal Developments re Service

Animals

• Recent Scientific, Practical Developments
• Recent Cases of Interest
• Your Questions (throughout presentation)

ADA/ADAAA Background

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ADA Background

• Statutory Definition of Disability:
• A physical or mental impairment that

substantially limits one or more major life activities;

• A record of such an impairment; or
• Being “regarded as” having such an

impairment

ADAAA Background

• Broad bipartisan support in Congress
• Signed into law by President Bush
• Purpose: “to restore the intent and

protections of the ADA as originally envisioned”

• Amendments greatly expanded the

definition of disability, in response to Court cases ADAAA Definition of Disability/ “Major Life Activities”

• ADAAA added non-exhaustive list of major life

activities:

• Examples: eating, sleeping, standing, lifting,

bending, breathing, learning, reading, concentrating, thinking and communicating

• Includes operation of major bodily functions,

i.e. immune system, digestive, bladder, neurological, respiratory, circulatory, reproductive

• Clarifies that only one major life activity need be

limited

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Mitigation Measures Not Considered

• “The determination of whether an impairment

substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigation measures . . . .”

• Medication, medical supplies, equipment or

appliances, prosthetic limbs, hearing aids, mobility devices, oxygen therapy equipment

• Assistive technology
• Learned behavior or adaptive neurological

modifications

Mitigation Measures

• ADAAA explicitly excepts “ordinary

eyeglasses or contact lenses”

• Vision impairment that is corrected with
• rdinary eyeglasses is not considered to

be disabling. Episodic/In Remission Impairments

• Former law: Focused on whether

employee was substantially limited at time

• f alleged discrimination
• ADAAA: “An impairment that is episodic or

in remission is a disability if it would substantially limit a major life activity when active.”

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“Regarded As” Protection Expanded

• Under ADAAA:
• A perceived impairment does not have

to (be perceived to) limit a major life activity (i.e., be a “qualified ADA disability”) to invoke the “regarded as” protection

• But, do not have to provide reasonable

accommodations to those who are “regarded as” disabled, but who are not actually disabled Practical Effects of Amended Definitions

• Broader ADA coverage means:
• Much less focus on threshold question of

“does individual have a disability”

• More focus on reasonable

accommodations dialogue and process

• ADAAA did not change reasonable

accommodations or documentation requirements Service Animals in Student Context

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Service Animals - Cases

• Rose v. Wal-Mart (W.D.Mo. 2009) (comfort

monkey)

• Assenberg v. Anacortes Housing Authority

(W.D.Wa. 2006) (“therapy snakes” and pot growing in housing)

• LaFore v. Housing Authority of Portland

(D.Or. 1999) (opossum as “assistance animal”?)

Service Animals - DOJ Public Accommodations Regulations (Effective March 15, 2011)

“Service animal” means:

• “any dog that is individually trained to do work or

perform tasks for the benefit of an individual with a disability including a physical, sensory, psychiatric, intellectual, or other mental disability. “

• Trained miniature horses included too.
• “Other species of animals, whether wild or

domestic, trained or untrained, are not service animals for the purposes of this definition.”

Service Animals - DOJ Public Accommodations Regulations

The work or tasks performed by a service animal must be directly related to the individual´s disability. Work/task examples include, but are not limited to:

• assisting individuals who are blind or have

low vision with navigation and other tasks

• alerting individuals who are deaf or hard of

hearing to the presence of people or sounds

• providing non-violent protection or rescue

work

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Service Animals - DOJ work/task examples, continued

• pulling a wheelchair
• assisting an individual during a seizure
• alerting individuals to the presence of allergens
• retrieving items (e.g., medicine, phone)
• providing physical support and assistance with

balance and stability to individuals with mobility disabilities

• helping persons with psychiatric and neurological

disabilities by preventing or interrupting impulsive or destructive behaviors

Service Animals – Permitted Inquiries

• In deciding whether to permit service animal,

institutions cannot ask about nature or extent

• f a student’s disability
• Cannot require documentation, such as

proof that the animal has been certified, trained, or licensed as a service animal.

• Generally cannot make these inquiries when

it is readily apparent that animal is trained to do work or perform tasks for a student with a disability

Service Animals – Permitted Inquiries

• May, however, make two inquiries to

determine whether an animal qualifies as a service animal:

• May ask if the animal is required because
• f a disability
• May ask what work or task the animal has

been trained to perform

• Animal must be housebroken and under

handler’s control

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Miniature Horses

• Miniature horse may be service animal if

individually trained to do work or perform tasks for the benefit of the individual with a disability

• In determining whether reasonable

modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation must consider several factors Miniature Horse Factors

• Can facility accommodate horse of its

type, size, and weight?

• Does handler have control of it?
• Is it housebroken?
• Does its presence in a specific facility

compromise legitimate safety requirements that are necessary for safe

• peration?

Service Animals - Cases

• Lady Brown Dog the Enforcer v. Burger King (10th
• Cir. 2009) (pit bull at restaurant)
• Roe v. Providence Health System-Oregon (D.Or.

2009) (odiferous St. Bernard at hospital)

• Prindable v. Assoc. of Apartment Owners (D.Ha.

2003) (Einstein the English Bulldog)

• Pena v. Bexar County (W.D. Tex. 2010) (Prissy the

Akita in courthouse)

• Lentini v. CA Ctr. For the Arts (9th Cir. 2004)

(“Jazz” the Shih Tzu/Poodle at “Tango Buenos Aires”)

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Service Animals in Employment Context

Service Animals in Employment Context

• ADA Title I (enforced by EEOC, applicable to

private and government employers) does not address service animals directly

• Service animals must be allowed as reasonable

accommodation for employees with disability unless presence creates undue administrative hardship

• Undue hardship parameters not well defined in

case law

• See askjan.org/media/servanim.html for helpful
• utline of ADA service animal issues

Recent Scientific, Practical Recent Scientific, Practical Developments Developments

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Recent Cases of Interest

Questions?

Jeffrey J. Nolan, Esq. jnolan@dinse.com www.dinse.com (802) 864-5751 Jodi Litchfield, A.A. Middlebury College litchfie@middlebury.edu