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

10/15/11 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 1

10/15/11 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 2

10/15/11 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 ordinary eyeglasses is not considered to be disabling. Episodic/In Remission Impairments • Former law: Focused on whether employee was substantially limited at time of 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.” 3

10/15/11 “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 4

10/15/11 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 5

10/15/11 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 of 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 of a disability • May ask what work or task the animal has been trained to perform • Animal must be housebroken and under handler’s control 6

10/15/11 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 operation? Service Animals - Cases • Lady Brown Dog the Enforcer v. Burger King (10 th 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 (9 th Cir. 2004) (“Jazz” the Shih Tzu/Poodle at “Tango Buenos Aires”) 7

10/15/11 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 outline of ADA service animal issues Recent Scientific, Practical Recent Scientific, Practical Developments Developments 8

10/15/11 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 9