Posted in ADA National Network, Reasonable accommodation

What is ADAAG and Who the Heck is “Gina?”

You have a bulging disc, but your employer still wants you to lift that 50-pound bag of birdseed. Under the Americans with Disabilities act (ADA), can she do that? 

While the question may seem pretty straightforward, it isn’t. Whomever you ask (if they know their stuff) is likely to bombard you with strange phrases like “essential functions,” “undue hardship” and “reasonable accommodation.” 

And those are just the words. You may also get a strange smattering of initials, such as Title 1, Sec. 504, FMLA and ADAAA. 

There is a method to this madness – the phrases/initials actually stand for concepts that may be crucial in getting an answer to your question.  But how can you figure it all out? 

While there’s no easy answer, there are some computer programs/applications that can help you convert this strange language into meaningful terms. They are no substitute for getting legal advice, but they can at least help you “speak the language.” 

One of the best ones is the search portal at the ADA National Networkhttps://adata.org/ada-document-portal. For example, if you open this link and then enter “reasonable accommodation” into the search engine, you will get many sublinks that explain what it is and how it has been applied to various workplace scenarios. You can also learn whether your condition is likely to be considered a “disability” under the law, as well as the different ways to “reasonably accommodate” it.  

Knowledge is power, and the ADA National Network is quite a powerful tool to help you better understand disability law.  

___________________________________________ 

(And by the way, ADAAG stands for ADA Accessibility Guidelines and GINA stands for the Genetic Information Nondisclosure Act. If you want more information, you know where to look!) 

LEAVE A COMMENT!

 
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.

_____________________________________________________________________

LEAVE A COMMENT!

Posted in disability civil rights, drugs and alcohol, Reasonable accommodation

Getting Real about Disability Laws # 3: Can an Employer Terminate a Drug Addict?

medicamente

As explained previously, these “getting real” posts are attempts to shed daylight on some of the wildly mistaken beliefs about disability laws. In today’s piece, I’ll talk about the myths and realities of  illegal drugs at work.

MYTH

Even if an employer has a policy prohibiting the use of drugs in the workplace, that employer cannot terminate an employee if he claims that he is a drug addict. This is because drug addiction is considered a disability under the Americans with Disabilities Act (ADA).

FACT

Actually, current users of illegal drugs are NOT protected under  the ADA. Neither are kleptomaniacs, pyromaniacs, compulsive gamblers or people with sexual behavior disorders.

This may seem strange, because there is little doubt that these conditions would ordinarily fit the legal definition of “disability.”  So why are they excluded? The reason, pure and simple, is politics. The drafters of the ADA knew they would face an even bigger battle if certain stigmatized activities were legally protected, so they simply wrote them out of the law.

This may also help explain why alcoholics are protected under the ADA. Regardless of the damage alcohol can do, it is still legal and hence occupies a higher “status” than other addicting drugs.

BUT, REALITY CHECK!

Even if alcoholism is protected under the ADA,  an employer can still discipline and even terminate an employee who is under the influence on the job. (The employer should have a policy stating this, of course.)

There were actually some early cases where terminated employees claimed that the ADA allowed them to be drunk on the job. The courts did not buy that, however, and the usual accommodation is to give the employee time off for treatment.

Finally, please keep in mind that although current drug users are not legally protected, former users are. The idea is that the addict who has gone through treatment and is ready to return to work should be able to do so without being stigmatized.

For more information, go to https://www.ada.gov/copsq7a.htm

Nothing on this site is intended to be legal advice.

LEAVE A COMMENT!

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?

 

D6FB1333-1F1B-40BC-9C44-F9A2BEBA08D1

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.

LEAVE A COMMENT!

Posted in disability civil rights, Reasonable accommodation

What’s Wrong With This Picture?

3EC82D2E-7B3D-43F8-89A6-2E0CA5419561

Well, nothing – unless you happen to be an individual with mobility and/or balance problems. Then, this scene could quickly turn into a nightmare.

More realistically, we probably just wouldn’t go to whatever this game is. Then we would lose the opportunity to have a pleasant evening, contribute to the economy and be more integrated into mainstream society.

This and thousands of similar scenes are part of the reason the Americans with Disabilities Act(ADA)  was enacted in 1990.

The ADA defines sports arenas as public accommodations (see the “public accommodations”  link on this site). As such, they are required to accommodate people with disabilities, as long as that accommodation does not create an undue burden.

So what might “accommodation” look like in this scenario? It could be a number of different things: installing hand railings, designating certain seats outside of this area for people with disabilities and their companions, providing physical assistance with getting up and down the stairs, etc.

In 2011, new regulations were issued that clarify much of what the law requires, as well as practical examples of what compliance might look like. Those regulations are in the link below.

Play ball!

https://adata.org/publication/disability-law-handbook#Ticketing,%20Reservations,%20and%20the%20ADA

Nothing on this site is intended to be legal advice.

LEAVE A COMMENT!

Posted in Employment, Reasonable accommodation

Walmart Gains some Unwanted Publicity in Disability Discrimination Claim

Nancy Stack worked for a Walmart store in Illinois. She was also a cancer survivor and had some residual physical limitations.

Cancer unquestionably meets the definition of “disability” under the Americans with Disabilities Act (ADA). The ADA also requires that upon request, an employer “accommodate” an employee’s disability, as long as such accommodation does not create an “undue hardship.” Accordingly, Ms. Stack asked Walmart to give her a modified schedule and to also arrange for her to have a chair in her work area.

Ms. Stack alleged that although Walmart had initially agreed to this, it revoked this agreement “for no stated reason.” She no longer got the schedule change, and she had to fetch her own chair from elsewhere in the store (which was difficult because of her physical limitations). And as if this wasn’t enough, Ms. Stack also alleged that a co-worker harassed her by calling her a “cripple” and a “chemo brain.”

Ms. Stack sued Walmart, for both failing to accommodate her and allowing the co-worker cruelty to happen. The case was settled last December, with Walmart agreeing to pay $75,000.00 to settle Ms. Stack’s claim.

There is a great deal that we will never know about this case. In particular, we will never know if Ms. Stack would have been able to prove all of her claims in court. She did make it through the first hurdle, though – the EEOC investigated her claim and thought there was enough there to merit filing a lawsuit on her behalf. In addition, it seems to me that $75,000.00 is quite a bit to pay if this were just a “nuisance” claim.

But this case resonated with me. I investigated EEOC claims for many years, and I saw numerous situations where although it could not be proven that the employer technically violated the law, there was seemingly needless misery on all sides. This was often brought about by the parties simply refusing to listen to each other. Difficult as this may sometimes be, many employers have learned the hard way that listening to their employees can be much easier (and cheaper) than having to listen to EEOC investigators.

For more information on this case, see:

Wal-Mart to Pay $75,000 to Settle EEOC Disability Lawsuit

Nothing in this site is intended to be legal advice.