Posted in Employment, Essential job functions and disabilities, Reasonable accommodation

Question from Reader:

 

Can my employer fire me because of my MS?

 

Good afternoon!

You asked whether your employer can terminate you because you have MS. The short answer is no, of course he can’t – but proving it can be very difficult.

Most employers will not go up and tell you they’re firing you because of your MS. The conversation is usually more along the lines that you are working too sloppily or too slowly, and perhaps causing others to take some of your load.

If this is the first you’ve heard of the problem, you might question why it has not been mentioned on previous performance evaluations or in workplace conferences. Although it is usually not illegal to fail to give employee warnings, it might violate some employer policies and it often casts the employer in an unfavorable light.

But let’s say that you agree that you are working slower than you would like to, and it’s because of your MS fatigue. To avoid having the above conversation at all, you might want to approach your employer early on and talk about a “reasonable accommodation.” One of the most important parts of the ADA is the requirement that upon request, an employer must work with an employee to determine if some modification of the job can be made, which will still allow the employee to perform the “essential functions” of the job and which will not cause the employer an “undue hardship.”

While these terms sound awfully technical (and they are!), they are the key to understanding both employees’ rights and employer obligations under the ADA. For example, maybe all you need is an opportunity to rest for 2 or 3 minutes every hour. You might want to consider having a conversation with your employer, requesting that this or some similar adjustment be made.

Before you do, however, I would strongly recommend that you discuss this with your attorney. There are both advantages and disadvantages of putting your MS out there like that, and it should be a strategic decision. Below is some information that will help.

Good luck!

https://www.eeoc.gov/facts/ada18.html

Nothing in this website is intended to be legal advice.

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Posted in disability civil rights, Employment, Essential job functions and disabilities, Reasonable accommodation

Getting real about disability laws, Part 2: Can an employer ever fire an employee with a disability?

 

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We’re all on information overload these days. So much seems to be coming at us from all sides. Worse yet, it’s very hard to tell if the information we’re absorbing is accurate. And it can be even worse if you have a disability, because you’re more likely to be isolated and not as able to access the people or documents that can help you work towards the truth.

Speaking of disabilities, one of the areas rife with misinformation is the AMERICANS WITH DISABILITIES ACT (ADA) and other laws designed to help people with disabilities get as fair a shake as possible in our society. That is why I am writing this series about some of the most common mistaken beliefs about these laws.

Today, I’m going to shed some light on the myth that an employer cannot fire an employee with a disability.

MYTH
If an employee with a disability cannot do her job, the employer cannot fire her but has to hire someone extra or make other employees do the work.

TRUTH
Like with anyone else, an individual with a disability does not have an automatic right to stay in a job unless she can actually perform it.

But the ADA is different from other discrimination laws in this respect: If an otherwise qualified employee needs reasonable accommodation in order to perform the essential functions of the job, the employer must provide the accommodation unless it would result in an undue hardship to the employer or cause a fundamental alteration in the workplace.

EXAMPLE
An office receptionist with a spinal deformity cannot sit for more than an hour or so at a time. It would probably be a reasonable accommodation for the employer to let him get up and stretch his legs for a few minutes every hour. This would allow him to do the job, and would result in little or no cost to the employer. But if his condition worsened to the point where he often had to leave his desk in the middle of customer calls, it would likely become an undue hardship for the employer to tolerate this situation.

POSSIBLE SOLUTION
As previously discussed, the ADA challenges both employers and employees to put fresh eyes on workplace tasks and determine whether they can be done in an effective (and possibly non-traditional) way. The law also requires that employers and employees work together to determine the best way for that to happen.

In this case, one option might be for the employer to purchase a desk that allows the employee to stand up as needed to do the job. Another might be to supply a cot or couch where the employee can answer the phone for part of the day. There are many potential solutions to this problem, and one of the best places to find them is at a government website called the JOB ACCOMODATION NETWORK. https://askjan.org

For more information, go to the “Employment” section on this website, or to https://www.ada.gov.

Nothing on this site is intended to be legal advice.

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Posted in disability civil rights, Employment, Essential job functions and disabilities

Getting Real about Disability Laws, Part 1

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Who knows what’s true anymore? Is the above photo a joke or would an airline really have to allow an “emotional support elephant” on a flight?

Spoiler alert: The photo is obviously a joke. But there really is a tremendous amount of misinformation out there about what our disability laws require. So in the next few posts, I am going to try to correct some of these “urban legends” that add to the already  misleading view of people with disabilities.

Myth:The Americans with Disabilities Act (ADA) requires employers to hire people with disabilities, even if they are not the most qualified applicants for a job.

Fact: The ADA specifically states that it does not prevent employers from hiring the most qualified person for a position. What it does prohibit, however, is employers imposing job requirements that  BOTH screen out people with disabilities AND are not “essential functions” of the job.

Example: A law office needs to hire a legal assistant. That person’s job is to do legal research and draft court pleadings. Occasionally, that person may be asked to drive to the courthouse and file papers, but there are plenty of other people around who could do that if s/he were not available.

Andrea applies for the job and would be the leading candidate, were it not for the fact that she has a nerve disorder that prevents her from driving.  If the employer decides not  to hire her for this reason, the employer might be violating the ADA, because it is not essential that Andrea be able to do that task.

But let’s change the facts a bit: This is a small office and the legal assistant must be depended on to file court papers on a regular basis. In that case, it would probably be legal for the employer to pass over Andrea, because she would be unable to perform the essential functions of the position.

As is clear, phrases like “essential functions” and “job descriptions” become crucial in analyzing these kinds of cases. And the ADA requires that each situation be judged on its own facts, to determine the meaning of these phrases in each particular setting.

So essentially, the ADA is requiring employers (and everyone) to free ourselves from outdated and unwarranted assumptions. And that would be a desirable step forward, even without the law.

For more information, to to the “employment” link on this website or to www.ada.gov.

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