Common ADA Employment Law Issues

While each situation is different, here are some things to consider with respect to ADA employment law issues:

1. Perhaps the most common employment law question from a newly diagnosed PWP is “should I tell my employer and, if so, when?” While there is no one-size-fits-all answer, the following considerations may be important. Do you want to continue working? If so, do you think your employer values you and would want you to stay?

  • While disability discrimination is unlawful, a valued employee typically stands a better chance of reaching an accord with the employer, on issues ranging from career path (growth is still possible!) to reasonable accommodations.
  • Early disclosure may be appreciated and lead to the best result. And it also avoids the risk of failing to notify your employer that you are disabled and need a job accommodation(s); even if your employer knows or should have known you have a medical condition, which does not necessarily establish that you are disabled and need help.
  • While disclosure can enhance legal protections and is generally the way to trigger the accommodation process, it is not without legal and other risks, which is perhaps why most people do not disclose until they need a reasonable accommodation
  • Note: the ADA contains certain confidentiality provisions, which require an employer to keep disability-related information confidential and to disclose such information only to those within the organization with a legitimate need to know.
  • Are you hating your job but need to hold onto it for the income and benefits, particularly health insurance?
  • On one hand, early disclosure may serve to put your employer on notice of your condition and dissuade your employer from terminating you, perhaps if only to avoid a possible lawsuit, e.g. for garden variety discrimination under the “regardless as” definition of “disability”
    • Disclosing early, especially before you are “substantially limited,” does not preclude termination for legitimate reasons unrelated to disability, such as poor performance or reduction in workforce
    • However, given the improvements in the current ADA your employer might choose not to risk being charged with garden variety discrimination under for in fact having “regarded” you as being disabled and/or that its asserted reasons for termination were a merely a pretext for discrimination.
  • The jury is still out on how the courts will interpret and enforce the ADA, and there is no one-size-fits-all recommendation regarding disclosure.
  • This is one reason why even if only on a casual basis, PWPs should keep abreast about how the implementation of the ADA amendments unfolds.
  • Keep in mind that taking the position you are able and want to work will impact your ability to in good faith seek other benefits, including LTD and Social Security.

2. Once you have disclosed, a common question is “what job accommodations should I ask for, and when should I ask?”

  • A key first step in answering this question (and the one above about disclosure) is to know what are the “essential functions” of your job.
  • The ADA affords reasonable accommodations so you can perform those functions. Again, a good relationship with your employer can allow for meaningful dialogue about what accommodations may be appropriate.
  • The proper accommodation(s) will depend upon the nature of your employer’s business, your role in the business, your health, and many other factors.
  • Examples could include changes to the workplace facility to allow access (such as a ramp or an accessible bathroom), auxiliary aids (perhaps a voice program if you are having trouble typing) or accommodations such as flexible scheduling (e.g., if your sleep is disturbed and early arrival is difficult), more regular or flexible break time (if you have difficulty standing or sitting for long periods), leaves of absence (if plausible the person will return to work upon recovery), time off for treatment, part-time schedule (some authority both ways, but enough going the right way to list it) and transfer to a vacant position.
  • Persons with appropriate expertise may need to weigh in on your specific situation. A good resource is the Job Accommodations Network, a free comprehensive service provided by the U.S. Department of Labor's Office of Disability Employment Policy (ODEP).
  • You should ask for accommodations as needed. Not until you need them. But not necessarily just once, either, as your needs may change. An employer’s obligation to accommodate is ongoing, and is not satisfied by one attempt to attempt a single accommodation.
  • It can be important that your employer understand that you have a progressive disease, and dialogue about accommodations may need to be ongoing.
  • If what you want is time off, even on an intermittent basis (for as short as a few hours), because of your condition or the need for treatment, including attending doctor’s appointments, the FMLA may be another and even better source of rights.
    • Unlike the ADA, the FMLA essentially has no employer defenses. There is no “undue hardship” defense, no need to show that the leave is “reasonable,” and no need to show that it is plausible that the person will return to work.
  • In order to exercise FMLA rights, a PWP or caregiver needs to alert the employer to his or her need to take leave due to a serious health condition.
  • Your employer’s FMLA policy will contain more details on how to request and the documentation necessary to support such a leave.
  • Keep in mind FMLA rights only apply if you work for an employer with 50 or more employees, you have 12 months’ service with the employer, and have worked 1250 hours over the past 12 months. The amount of leave that can be taken in a year is limited.

3. PWPs also often ask “what should I do if I feel I am being discriminated against on the basis of disability?”

  • Key questions here are do you have a disability as defined by the ADA and, if so, what specifically has taken place that you think was discriminatory? Were you denied an accommodation? Passed over for a promotion? What facts make you think this was related to disability?
  • You should contact the Equal Employment Opportunity Commission and a private attorney, as appropriate, to assess your situation and protect your rights.

4. Finally, at some point in time you may find yourself wondering “what if I’m really not able to keep doing my job?” even with accommodations.

  • Keep in mind that you are at or nearing the time when you may no longer be protected by the ADA at work.
  • This could, among other things, lead to performance issues and/or a performance-based termination, which may be difficult to challenge. (While in theory this could also allow your employer to fire you because of your failing health, if a person is exhibiting performance problems perhaps due to failing health, there is authority to support that the employer cannot terminate without exhausting the interactive process/reasonable accommodation.)
  • It is particularly important for PWPs to be aware and honest with themselves about when this time is nearing. Read more about the importance of self-assessment.
  • Being prepared will help ease your transition from the workplace to the next adventures in your life, in which definitions of “disability” far different than the ADA’s (e.g., LTD, SSDI) will become much more important to you. 

 

Content for this section provided by Mark Rubin, J.D.

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