From the desk of Linda Carter Batiste, J.D., Principal Consultant
One of the most significant changes the ADA Amendments Act made to the definition of disability is that now, when trying to figure out how limited a person is by his impairment, we ignore the beneficial effects of any mitigating measures he uses. This change has been very confusing to some, but once you figure it out, it really is not that difficult. All it means is that we now have to determine what effects an impairment would have if the person did not use any mitigating measures.
And just what are mitigating measures? They are things a person uses to treat his impairment or overcome any limitations the impairment causes. Examples include things like wheelchairs, hearing aids, medication, prosthetic limbs, and therapy.
How do we know how limited a person would be without his mitigating measures? First we need to know if he uses mitigating measures. In some cases it will be obvious – we will see his wheelchair or hearing aid or prosthetic limb. In other cases we may need to ask him or get medical documentation when appropriate.
Next we need to find out what would happen if the person did not use the mitigating measure. Again, in some cases it will be obvious. For example, if a person with a prosthetic leg does not use his prosthesis, he will be substantially limited in walking. If it is not obvious, there are various ways to figure out how limited the person would be without the use of a mitigating measure, such as:
- Find out what limitations a person experienced prior to using a mitigating measure,
- Find out the expected course of a particular disorder absent mitigating measures, or
- Look at readily available and reliable information of other types.
You may be wondering when this issue will arise. It usually comes up in the workplace when an applicant or employee requests an accommodation and the employer needs to determine whether that person meets the definition of disability and is therefore entitled to the accommodation. One important thing to remember is that ignoring the beneficial effects of mitigating measures only applies to determining whether someone has a disability. When looking at whether a person needs a reasonable accommodation we do the opposite – we will look at what limitations he has after he uses the mitigating measure. That is why the best approach is to make the disability determination a separate step from the reasonable accommodation process.
So you see, the ADA Amendments Act rule about mitigating measures is not that hard to apply. All it usually takes is some common sense.