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And no, being “fragile” or having a vaccine exemption is not being disabled under the ADA

And no, being “fragile” or having a vaccine exemption is not being disabled under the ADA

Ok, so if it’s not medical discrimination, how about discrimination against the disabled under say the American With Disabilities Act?

Probably a fairly hard no for almost all of the current exemptees.

For starters, if your child got an exemption because of family history, or a genetic test, your child isn’t disabled. Same applies if the exemption was based on a prior AE, unless the AE caused your child to be actually disabled, and I’m guessing that is rare.

Here are some definitions from the ADA

“Sec. 12102. Definition of disability

As used in this chapter:

(1) Disability

The term “disability” means, with respect to an individual

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

(B) a record of such an impairment; or

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

(2) Major Life Activities

(A) In general

For purposes of paragraph (1), 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.

(B) Major bodily functions

For purposes of paragraph (1), 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.

(3) Regarded as having such an impairment

For purposes of paragraph (1)(C):

(A) 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.

(B) Paragraph (1)(C) 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.”

My understanding is that most exemptees are basically healthly, but had some AE in the past, or family history of some kind of autoimmune condition and some combination of genetic polymorphisms, which some doctors think might create a higher risk of a serious AE upon further vaccination.

That’s not being disabled under the ADA or any other disabiiity law.

Two caveats: First, I am not a disability lawyer, but I do know how to read a statute. Second, I’m not saying there aren’t any exemptees out there who might fit the definition of disabled, but what I am saying is that from what I’ve seen in medical records and discussion with physicians, most exemptions are given to kids who don’t meet the definition of being disabled.

So, no sale, for me at least. Nonetheless, I’m sure the argument will find its way into some lawsuit if and when SB 276 becomes law.

Keep thinking!

Rick Jaffe, Esq.