Some good news....

[Guest guest]

....but it will be slow in government changing (if ever) for employees with

autism and/or Asperger's Syndrome. God Bless, Tom

Direct link:

http://us.lrd./_ylc=X3oDMTB1YjU3MHU4BF9TAzk2ODg1Nzk4BGVtYWlsSWQDMTI1ODQ\

wNDk0Nw--/SIG=11uqv6q3h/**http%3A//www.msnbc.msn.com/id/33793152/ns/business-car\

eers/

Printer-friendly link:

http://www.msnbc.msn.com/id/33793152/ns/business-careers/print/1/displaymode/109\

8/

Or read below:

MSNBC.com

Your Career: More disabilities to be protected

Epilepsy, cancer, mental illness to be covered under changes to ADA

By Eve Tahmincioglu

msnbc.com contributor

updated 4:46 p.m. CT, Sun., Nov . 15, 2009

Priya Dua suffers from epilepsy, but she considers herself a hard worker who has

not allowed her condition to derail her career. But her last job as an account

manager for a San Diego company tested her resolve.

Dua would have infrequent seizures, but her boss demanded that she come in right

after an episode instead of letting her take a sick day or allowing her to

telecommute.

" They could have easily accommodated me, " she said. " I was able to access all

the documents I needed for work from home. "

" At one point, " she added, " due to worry of what my boss would do, my seizures

became more prevalent. "

Dua doesn't consider herself disabled because she's rarely incapacitated for

more than a few hours, and she has been able to keep seizures under control

thanks to medication. She figured she just had to put up with such behavior in

the workplace. Eventually she quit for a new job.

Under the Americans With Disabilities Act of 1990, Dua would not have been able

to bring a claim against her former employer for failing to accommodate her

condition, because epilepsy was not covered under the law. But the ADA

Amendments Act of 2008 (ADAAA) — the first major changes to the original

legislation — is redefining the definition of disability to include a host of

workers with conditions such as epilepsy, diabetes or bipolar disorder that

aren't as obvious as someone in a wheelchair or a blind person with a seeing-eye

dog.

Previously, such individuals may not have been considered by the courts to be

disabled under the ADA because their ailments were episodic instead of constant

or they were able to mitigate their condition through the use of medication or

aids such as prosthetics.

" What the amendments do, in the broadest sense of the word, is open up the

notion of who is disabled and who is covered by the statute that was very

restrictive before, " said , Henry M. Professor of Law

at the University of Washington School of Law.

Definition of disability

Lawyers who represent businesses believe the new rules will be yet another

burden on their clients, and some predict an onslaught of lawsuits as a result.

Disability advocates believe it will be a boon for disabled workers with a host

of diseases who were not protected from workplace discrimination before.

The Equal Employment Opportunity Commission is charged with updating its ADA

regulation to reflect the changes in the law.

One thing for certain is that the amendments clarify one of the biggest

questions that has arisen in disability bias claims and litigation in the past

decade: Who is and who is not considered disabled under the ADA?

" In the past 10 years, it's become extremely difficult for people to use the

ADA, particularly to fight workplace discrimination, " said Mathis,

deputy legal director for the Bazelon Center for Mental Health Law.

The revision in the law, she added, " will reopen the doors of the workplace to

people with psychiatric and other disabilities. "

Dan Kohrman, chair of the legal advocacy subcommittee for the American Diabetes

Association, said one of the key changes is Congress' recognition " that a

substantial disturbance in a major bodily function is a disability. That surely

covers people with diabetes. "

Under the original ADA, the wording referred to conditions that " significantly "

and " severely " restrict activities. Now, the list of major life activities that

would have to be impacted to qualify as a disability has been expanded to

include things like lifting — for a worker who has back problems, for example —

and concentrating — say, for a worker who has a mental health disorder — and

immune disturbances that affect normal cell growth and bladder functions,

according to the EEOC's rulemaking notice for the ADAAA.

All these additions are making some employers nervous.

" Disabled workers should be given every opportunity to be successful, but the

downside is all these regulations, " said Janine Yancey, an employment lawyer and

CEO of emTRAiN, a human resource compliance training company. " It will become a

chaotic mess in the workplace, adding new people and making it a whole lot

easier to establish claims. "

She pointed to the changes in " mitigating measures " such as medication.

Currently, employers typically don't consider a worker disabled if they if they

don't display symptoms of a disease because they're taking drugs, she said.

Under the new rules, she added, courts will now say, " We don't care if they can

control it. "

This change is exactly what East, an attorney with Advocacy Inc. who

represents people with disabilities, sees as great news for workers.

East, who is also co-chair of the Disability Rights Committee of the National

Employment Lawyers Association, maintained that an employer could fire a worker

who has schizophrenia, for example, and claim the worker was not disabled

because he was taking medication to control his disease or only had symptoms now

and then.

" About half the ADA cases were thrown out before trial by a judge because there

was no evidence to show a disability, " he said.

Fired for having cancer

Indeed, Ellen Simon, an employment lawyer who writes the " Employee Rights Post "

blog, represented a man with HIV/AIDS who was found not to be disabled by the

courts. She also had a female client with cancer who was fired for going to her

chemotherapy appointment. " That case was thrown out because the employer argued

cancer was not a disability, " she said.

That case was eventually settled, but Simon believes the new regulations will go

a long way in clarifying the definition of who is disabled. " Instead of

litigating whether or not a person is disabled, what will be litigated is

whether or not the person was discriminated against. You still have to prove

that in court, " she said.

The EEOC has been holding town hall meetings around the country to get input

from business groups and advocates from the disabled about what the rules should

include, and the public has until Nov. 23 to submit comments to the agency.

During an Oct. 30 EEOC town hall meeting in Philadelphia, company attorneys

argued that the new regulations would lead to a flood of lawsuits because the

definition of who qualifies as disabled has been broadened. There also was

concern among attendees that employers may be forced to retain insubordinate

workers or workers who pose a threat to themselves or others as a result.

" I don't buy that, " said EEOC Acting Commissioner Stuart Ishimaru.

" The laws aren't intended to protect workers that can't do the job, " he told

msnbc.com. His emphasis for future ADA litigation will be on bigger cases, not

more cases, to " address systemic issues " regarding disability bias throughout

the work world.

" The courts have taken a narrow view, and the focus had turned on whether this

person had a disability or not, " he said. " These amendments are going to shift

focus back to `Has there been discrimination here?' "

Eve Tahmincioglu writes the weekly " Your Career " column for msnbc.com and

chronicles workplace issues in her blog, CareerDiva.net.

URL: http://www.msnbc.msn.com/id/33793152/ns/business-careers/

MSN Privacy . Legal

© 2009 MSNBC.com