Tips for Using the ADA

The Americans with Disabilities Act and Fair Housing Act can provide legal rights to improved community participation for people with fibromyalgia and chronic pain. How can reasonable accommodation work for you?  Law professor Barbara L. Kornblau provided tips and a comprehensive presentation of those keys in her presentation at the Treating and Preventing Chronic Pain Conference to help you understand the ADA and FHA to take advantage of the legal rights they provide to you.

What is the Americans with Disabilities Act (ADA)?

  • The ADA established a clear and comprehensive prohibition of discrimination on the basis of disability and provides broad coverage and vigorous and effective remedies. The ADA was passed in 1990, when Congress found that 43 million Americans were individuals with disabilities, and amended in 2011.

How is disability defined in the ADA?

  • A physical or mental impairment that substantially limits a major life activity;
  • A record of such an impairment;
  • or Being regarded as having such an impairment
    • An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

What did the ADA Amendment in 2011 do?

  • It changed the focus from whether the person is disabled enough to qualify for protection, to whether the person was treated unfairly because of a serious injury or disease.
  • Ameliorative effects of mitigating measures will no longer play a role in the determination of whether impairment substantially limits a major life activity.
  • An episodic impairment or one that is in remission is considered “disability if it would substantially limit a major life activity when active.” Need only limit one major life activity to be considered a substantially limiting impairment.

What are major life activities?

  • “not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working.” and “[t]he operation of a major bodily function, including functions of the immune system, special sense organs and skin; normal cell growth; and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.” 29 C.F.R. § 1630.2(i)(1)(i) (2011)

Are people with fibromyalgia and chronic pain people with disabilities?

  • Yes, it limits major life activities including: sleeping, caring for oneself, performing manual tasks, walking, standing, sitting, lifting, bending, concentrating, and thinking. It also limits bodily function in the immune system, musculoskeletal system, neurological system, special sense organs, and skin.

What does the ADA mean for me as a person with a disability?

  • Under ADA Title I, No covered entity may discriminate against a qualified individual with a disability because of the individual’s disability, in regard to job application procedures, the hiring, advancement or discharge of employees, employee compensation, job training, social and recreational programs sponsored by the employer, and other terms, conditions, and privileges of employment.” 29 C.F.R. § 1630.4
    • Private employers with 15 or more employees (does not cover federal or state and local government employees)  
    • Must make reasonable accommodations for "qualified individuals with a disability".
  • Under ADA Title II, state and local government must make reasonable modifications to policies, practices, and procedures to avoid disability-based discrimination
  • Under ADA Title III, privately owned places of public accommodation must make reasonable accommodations (and modifications to policies and procedures) to enable use of the goods and services it provides.

What did the Fair Housing Act Amendment do?

  • It prohibited discrimination in housing of individuals with disabilities
  • What constitutes discrimination against a person with a disability?
  • Deny or make unavailable a sale or rental because of:
    • Disability of buyer or renter
    • Disability of intended resident
    • Disability of any person associated with a PWD [42 U.S.C. § 3604(f)]
  • Make inquiries into whether an applicant for sale or rental is a PWD
  • Changing the terms, conditions or privileges of sale or rental or the provision of services or facilities in connection with a sale or rental of a dwelling

What are exceptions to discriminative action?

  • Direct threat;
  • Substantial physical damage to property of others
  • Exempt dwellings – single family homes
  • Mrs. Murphy exemption (4 units with owner on premises)

What are my landlord’s requirements to accommodate my disability?

  • Unlawful to refuse to permit at the expense of a PWD,
    • Reasonable modification of existing premises occupied by a PWD if the proposed modification may be necessary to afford the PWD full enjoyment of a dwelling Fair Housing Act, 42 U.S.C. § 3601 et. seq. (1989).
  • Landlord may, if reasonable, condition permission for modification on the renter agreeing to restore the interior to the condition before the modification;
  • May not increase security deposit but may hold funds an interest bearing escrow account for the restoration;
  • May condition permission for modification on provision of a reasonable description of the proposed modification and assurances work will be properly performed with permits etc.
  • Make reasonable accommodations in rules, policies, practices, or services
  • Necessary to afford a PWD equal opportunity to use and enjoy a dwelling unit, including public and common use areas
    • Examples - service dogs and parking, classic home modifications, or reserved parking spaces

How do I report a violation of the Fair Housing Act?

  • File a complaint with HUD
  • Simply Google “How do I file a fair housing complaint?”
  • You can fill out the forms online Want to learn more?

Access Barbara Kornblau’s full presentation and other TAP Chronic Pain Conference presentations at http://www.paintap.org/buy-live-stream.

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