Under Title I of the Americans with Disabilities Act ("ADA"), employers may not discriminate against - and must provide reasonable accommodation for - workers with disabilities. But how to identify a patient with a "disability"?

Under ADA, a person has a disability if he/she:

• Has a physical or mental impairment that substantially limits one or more of his or her major life activities:
• Has a record of such an impairment; or
• Has been regarded as having such an impairment

A physical impairment is defined by the ADA as:

"Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting...[the] neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and [/or] endocrine [systems]."

The ADA defines a mental impairment as:

"Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities."

An impairment exists even if the condition is corrected or controlled by medication or prosthetic devices (e.g. epilepsy or an amputated leg).

Characteristics or conditions which are not disorders are not impairments. Examples: Left handedness, height or weight within normal range, pregnancy, predisposition to a disease. Similarly with mental traits: poor judgement, quick temper and irresponsible behavior are not impairments; nor are environmental, cultural, or economic disadvantages such as lack of education or a prison record.

"Stress and depression" are impairments only if caused by documented physiological or mental disorders.

Contagious diseases, such as HIV or tuberculosis, are impairments.

and other activities average people can perform with little or no difficulty.

The impairment qualifies only if it substantially limits a major life activity, taking into account three factors:

1. Nature and severity;
2. How long it will last, or is expected to last; and
3. Its permanent or long term impact, or expected impact.

So, it is not just the existence of the impairment, but its effect on the person - whether it "substantially limits...". The effect concerns the impact on life activities. The same injury or condition, such as a back injury, may permanently limit one patient, but not another. The latter would not be disabled under the ADA.

An individual may have two or more impairments. Neither alone substantially limits a major life activity. But if they do in combination, then the individual has a disability.

Temporary, non-chronic impairments - such as broken bones which heal within a few months and have little or no long term impact - usually are not disabilities.

Specifically excluded are persons who use drugs illegally. Also, homosexuality and bisexuality are not impairments. Nor does "disability" include syndromes such as transvestitism, compulsive gambling, kleptomania, pyromania and others.

The ADA prohibits discriminating against people with a history of a disability, even if they are not now substantially limited. This includes histories such as cancer, heart disease or mental illness. Also protected are people who have been misclassified or misdiagnosed as "mentally retarded" or psychopathic."

People who have been hospitalized for drug addiction, and have not used illegal drugs since, are also protected. So, rejecting a worker based on a record of former addiction - an impairment which substantially limited major life activities - is discrimination. This does not apply, however, to a record of casual drug use, which would not have substantially limited a major life activity.

Oregon state law also protects workers with disabilities. If you have a patient who has a disability, or a history of one, which is affecting his or her employment, you would do a favor to advise this patient to seek competent legal counsel.