Definitions of Key Terms: Disability, Qualified Individual and Essential Functions

The Colorado Anti-Discrimination Act (CADA) subcommittee has identified the following terms that should be defined in Colorado Revised Statutes. Some of these are defined in federal law (ADA). Other definitions would incorporate standards from case law or other sources. The group is proposing that all definitions be directly incorporated into Colorado law.

None of the ideas constitute formal recommendations at this time and the ideas are being presented strictly for stakeholder feedback to be considered by the subcommittee. In some cases, competing, parallel or complementary ideas are presented for addressing challenges or barriers to gather feedback on multiple approaches discussed. The subcommittees may revise, discard or advance any one or more of the ideas as recommendations later this year.

Members of the public are invited to answer any or all of the following questions about each idea:

What do you see as the strengths or benefits of this change to current Colorado law?
What would be any areas of concern, unintended consequences or other implications?
Do you have specific revisions, additions or key elements relating to this particular idea that you would like the subcommittee to consider?

Definition of Disability

Repeal 24-34-301(7), and reenact as follows:

(7) “Disability” means:

(a) With respect to an individual--

(i) a physical or mental impairment that substantially limits one or more major life activities of such individual;

(ii) a record of such an impairment; or

(iii) being regarded as having such an impairment (as described in paragraph (3)).

(b) Major life activities include:

(i) In general

For purposes of paragraph (7), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

(ii) Major bodily functions

For purposes of paragraph (7), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

(i) 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 chapter 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.

(ii) Paragraph (7)(a)(iii) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less.

(d) The definition of “disability” in paragraph (7) shall be construed in accordance with the following:

(i) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.

(ii) The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008.

(iii) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

(vi) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

(e) For the purposes of Paragraph 7:

(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as--

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

(II) use of assistive technology;

(III) reasonable accommodations or auxiliary aids or services; or

(IV) learned behavioral or adaptive neurological modifications.

(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity.

(iii) As used in this subparagraph--

(I) the term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error; and

(II) the term “low-vision devices” means devices that magnify, enhance, or otherwise augment a visual image.

Definition of Qualified Individual:

The term “qualified individual” means an individual who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

Definition of Essential Functions:

The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term “essential functions” does not include the marginal functions of the position or job duties that were not essential at the time they were imposed or sought to be imposed on the individual with a disability.

(a) A job function may be considered essential for any of several reasons, including but not limited to the following:

(i) The function may be essential because the reason the position exists is to perform that function;

(ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or

(iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

(b) Evidence of whether a particular function is essential includes, but is not limited to:

(i) The employer’s judgment as to which functions are essential;

(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing the function;

(iv) The consequences of not requiring the incumbent to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job; and/or

(vii) The current work experience of incumbents in similar jobs.

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