Mitigating Measures

The ADA Amendments Act of 2008 (ADAAA) changed how employers determine whether an individual has a disability under the ADA. When deciding whether an impairment substantially limits a major life activity, the city generally must evaluate the impairment without considering the beneficial effects of mitigating measures.

In other words, an employer generally may not conclude that an employee is not disabled simply because medication, treatment, equipment, or another measure controls the employee’s symptoms or enables the employee to function more normally. The analysis asks how the impairment would affect the individual without the beneficial effects of the mitigating measure.

Mitigating measures may include:

• Medication, medical supplies, equipment, or appliances.
• Low-vision devices.
• Prosthetics, including artificial limbs and related devices.
• Hearing aids, cochlear implants, and other implantable hearing devices.
• Mobility devices.
• Oxygen therapy equipment and supplies.
• Assistive technology.
• Reasonable accommodations and auxiliary aids or services.
• Learned behavioral or adaptive neurological modifications.
• Psychotherapy, behavioral therapy, or physical therapy.

The principal exception is ordinary eyeglasses and contact lenses. When determining whether an individual is substantially limited in seeing or another major life activity, the beneficial effects of ordinary eyeglasses or contact lenses must be considered. “Ordinary” eyeglasses or contact lenses are those intended to fully correct visual acuity or eliminate refractive error. Low-vision devices are not treated as ordinary eyeglasses or contact lenses.

The city may consider the negative effects of mitigating measures. For example, medication side effects, treatment burdens, fatigue, treatment schedules, or the time necessary to manage a medical condition may themselves affect whether an impairment substantially limits a major life activity or whether accommodation is needed.

Example: Diabetes
Diabetes will ordinarily qualify as a disability under the ADA because it substantially limits the major life activity of endocrine function. This remains true even if the employee’s blood glucose is controlled through insulin, medication, diet, or another treatment plan. A city should not find that an employee lacks ADA coverage merely because the employee manages diabetes successfully.

An employee with diabetes may request reasonable accommodation, such as breaks to test blood glucose levels, eat, drink water, take medication, administer insulin, or recover from a blood-sugar episode; a private area for testing or insulin administration; a modified schedule; a chair or stool; or leave for treatment. The appropriate accommodation depends on the employee’s limitations and job duties and must be evaluated through the interactive process.

Practical city guidance
Do not deny an accommodation request because medication, medical equipment, therapy, or another treatment controls an employee’s condition. Refer the request to HR for an individualized assessment of the employee’s limitations, job functions, requested accommodation, and possible undue hardship.