Protecting the Rights of Parents and Prospective Parents with Disabilities: Technical Assistance for State and Local Child Welfare Agencies and Courts
2. Who is considered a person with a disability under Title II of the ADA and Section 504?
Answer: The ADA and Section 504 protect the rights of individuals with disabilities.40 A “disability” is defined as a physical or mental impairment that substantially limits a major life activity, such as caring for oneself, performing manual tasks, breathing, standing, lifting, bending, speaking, walking, reading, thinking, learning, concentrating, seeing, hearing, eating, sleeping, or working.41 Major life activities also include the operation of major bodily functions, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, or bladder, neurological, brain, and respiratory, circulatory, endocrine, and reproductive functions.42
Congress has made clear that the definition of disability in the ADA and Section 504 is to be interpreted broadly.43 Even if an individual’s substantially limiting impairment can be mitigated through the use of medication; medical supplies, equipment, and devices; learned behavioral or adaptive neurological modifications; assistive technology (e.g. a person with a hearing disability who uses hearing aids that substantially restores the sense of hearing); or reasonable modifications to policies, practices, or procedures, the individual is still protected by the ADA and Section 504.44 The ADA and Section 504 also apply to people who have a record of having a substantial impairment (e.g., medical, military, or employment records denoting such an impairment), or are regarded as having such an impairment, regardless of actually having an impairment.45
An “individual with a disability” under the ADA and Section 504 does not include an individual who is currently engaged in the illegal use of drugs, when the state or local government program or program receiving Federal financial assistance acts on the basis of the illegal drug use.46 However, an individual is not excluded from the definition of disability on the basis of the illegal use of drugs if he or she (1) has successfully completed a drug rehabilitation program or has otherwise been successfully rehabilitated and is no longer engaging in drug use, or (2) is participating in a supervised rehabilitation program and is no longer engaging in drug use.47
To be eligible, an individual with a disability must be “qualified.” An individual with a disability is qualified if he or she meets the essential eligibility requirements of a service, program, or activity, with or without the provision of reasonable modifications, the provision of appropriate auxiliary aids and services, or the removal of architectural and communication barriers.48
40 42 U.S.C. § 12132; 29 U.S.C. § 794(a).
41 42 U.S.C. § 12102(1), (2)(A); 29 U.S.C. § 705(9)(B).
42 42 U.S.C. § 12102(2)(B).
43 42 U.S.C. § 12102(4)(A); 29 U.S.C. § 705(9)(B).
44 42 U.S.C. § 12102(4)(E)(i); 29 U.S.C. § 705(9)(B); see also Equal Employment Opportunity Commission, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, at www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.
45 42 U.S.C. § 12102(2)(1)(B)-(C); 29 U.S.C. § 705(9)(B). The ADA Amendments Act of 2008 amended the definition of disability for Titles I, II, and III of the ADA as well as Section 504. Pub. L. No. 110 ‐ 325, 122 Stat. 3553 (2008). For a discussion of the United States Department of Justice’s (DOJ’s) interpretation of the changes to the definition, see DOJ’s Notice of Proposed Rulemaking to Implement ADA Amendments Act of 2008, 79 Fed. Reg. 4839 (January 30, 2014). See also Equal Employment Opportunity Commission, Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, at www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.
46 42 U.S.C. § 12210(a); 29 U.S.C. § 794(d).
47 42 U.S.C. § 12210(b)(1)-(2); 29 U.S.C. § 794(d).
48 42 U.S.C. § 12131(1); 28 C.F.R. § 35.104; see also 45 C.F.R. § 84.3(l)(4) (defining “qualified handicapped person” under HHS’ Section 504 regulation).
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