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 Network. https://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!)
Okay, I’ll admit it – on some level I wanted to look like
Barbie. Even though I intellectually knew that she wasn’t real and didn’t resemble
any person I knew, that skinny piece of painted plastic still had the power to
make me feel woefully inferior, if I let it. There was something about her
silent perfection that could not help but scream “pretty,” “hip” and “athletic”
to me, especially when she was dressed up to go hiking or rollerblading with
the ever-hunky Ken.
Of course, most children go through something like this as
we are growing up. And because I did not develop MS until well into adulthood, I
at least did not have the additional burden of incorporating a cane, a walker
or a wheelchair into my developing self-image. That would only have made things
more difficult and infinitely more confusing.
And it’s not just Barbie. Traditionally, images have abounded on television and in books and movies about “desirable” people, who almost never include people with disabilities (unless we are shown as unrealistically cheery and inspirational or as sinister and even evil, driven mad by our disabilities).
But it’s refreshing to see that things are slowly but
steadily changing. There are more television shows, movies and even commercials
that feature people with disabilities as just regular people – because that’s
all we really are.
And it was good to read that later in 2019, Mattel is going
to introduce new Barbie dolls that will look a lot more like real people. As
shown in the above photo and accompanying CNN article, the dolls will be varied
in their bodies, hair, skin and clothes, just like we all are. And significantly,
one of the dolls is a wheelchair user and another one has a removable prosthetic
So while the new Barbie is not going to feed the world, stop global warming or eliminate all discrimination, she can at least provide a little reassurance to children with disabilities who want to feel a little more connected to a very confusing world.
UPDATE: I’m now in
my 60’s and have had multiple sclerosis for about three decades. I haven’t played with dolls for a long time,
and I think I’m pretty much over “Barbie Envy.”
But when I feel particularly frustrated with my limping and tripping, it gives me some measure of comfort to see more and more people like me represented on television, in movies and elsewhere in the public domain. It reminds me that “real” people are not (usually) made of plastic!
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.
My rollator is my freedom. There’s no question about that. It allows me to observe the world while I’m walking, instead of constantly looking down to avoid pebbles or cracks that might (and do) send me reeling.
Liberating as it is, the rollator has its drawbacks. It’s big and bulky, and it’s forever a challenge to figure out where to stow the dang thing when I’m at a concert or in a restaurant. And when I’m walking down the sidewalk, I’m often either parting crowds or zig-zagging to get out of people’s way.
Still, I’m rarely without it and until I retired a couple of years ago, I took it to work every day. And because I happened to work in a government agency that investigates employment discrimination complaints, I knew that my boss and co-workers readily understood that the device was an accommodation to which I was entitled under the Americans with Disabilities Act (ADA).
But as those of us with MS and other disabilities know, once we get in the door we can still be isolated from the daily workplace rhythm. For example, in the latter years of my career, my boss and anywhere from 5 to 15 co-workers started taking daily morning walks to a nearby coffee shop. They walked three long blocks down a gentle hill in heavy traffic. None of the others had apparent disabilities, and they filled the sidewalk and moved quickly. For safety reasons, as well as the knowledge that I would always end up walking far behind them, I didn’t join these daily coffee fests.
It was always somewhat awkward when I ran into the able-bodied “mob” and saw the forced smiles and downcast eyes, especially on the part of my boss. But I could live with that. The problem was when I began to realize that these daily strolls had sort of been taking the place of staff meetings, and people often used the time to discuss work-related issues. Sometimes those items were important, and I would only learn of them through casual remarks made by others during the day. In addition, as everyone who works in an office knows, these activities can create and deepen connections that are invaluable in the course of a career.
I tried to hint a few times to my boss that the situation made me feel left out, but nothing changed. And after all, what was it I really wanted – to tell them they couldn’t go or that they had to walk slower during the times I joined them? Absolutely not!
As with most workplace accommodations, a little thought and sensitivity could have changed everything – they could have had regular staff meetings and other “accessible” ways for staff to get together. That’s what I told them during my retirement party, and my understanding is that this is exactly what they have started doing.
I won’t pretend for a moment that this was as important as the other workplace battles I fought – such as finding a system to make sure everyone gets down the stairs in the event of a fire. But I’m glad that the next person with mobility limitations that works there will not have to go through this daily indignity. I guess that’s what it means to change the world one “step” at a time.
For more information about workplace accommodation, see
The Internet is indeed a mixed blessing. The good news is that there’s an amazing amount of information out there. The bad news is that there’s an amazing amount of information out there.
As an individual with multiple sclerosis, I have of course surfed the web, looking for answers. Once I learned how to separate the truthful and credible information from the wacky and even dangerous stuff, I learned a great deal.
Much the same can be said about the current confusion regarding the Americans with Disabilities Act (ADA), the landmark law that has literally changed the American landscape and allowed so many people with disabilities to participate in society. In my years investigating discrimination cases for the State of Oregon, I encountered a lot of this misinformation and saw how it negatively affected both employers and employees, often pitting them against each other.
Because it is so important that everyone gets it right, I’ve given a couple of examples of some of the most common areas of confusion. In future columns, I’ll try to further separate fact from fiction.
If two people are equally qualified to perform a job, the employer must hire the one with the disability.
The ADA does not require that an employer give preference to one applicant over another. The law simply requires that employers don’t discriminate against people because they have disabilities.
Part of nondiscrimination, however, is that if an employer can make changes in the way a job is performed, and this change allows the employee to perform their duties without causing undue hardship to the employer, the employer must make those changes.
Judith and Jonathan both apply for a cashier’s position at the neighborhood drug store. Judith is more experienced and the employer wishes to hire her. Because Judith has arthritis, she must sit down for at least 10 minutes every hour. There is room for a stool in the cashiering area, and Judith can perform her cashiering duties while sitting. If the employer does not hire Judith because of her arthritis, the employer has likely violated the ADA.
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.
As 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 as with the above example on hiring, the employer may have to make adjustments to allow the employee to perform the job.
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 him 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 and there was no one available to replace him, it would likely become an undue hardship for the employer to tolerate this situation.
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. The net result is often a workplace where everyone feels more respected.
Michale Volpe testifying before the Oregon Transportation Commission, October 19, 2018
You probably have never thought much about that striped area alongside all disabled parking places. And you also likely haven’t noticed that quite frequently, this space is inhabited by all manner of vehicles – cars, delivery trucks, motorcycles, etc.
No need to feel guilty. There are usually no signs present, so it’s a little hard to tell what exactly that area is for. But as Michael Volpe put it to the Oregon Transportation Commission (OTC) last October 19, those spaces for hm are the difference between being able to leave his vehicle or being a prisoner therein until the obstruction is removed.
Michael has multiple sclerosis, and is unable to move either his arms or legs. In addition, he is legally blind and is gradually losing his ability to talk. But with the help of an assistant, he could not have expressed himself more eloquently when he told the commission of the many times he was unable to find a disabled parking place, only to find that once he did locate one, that side area was blocked by another vehicle. Therefore, he could not get his wheelchair out of his van and was essentially stuck there until the impediment was removed.
In addition to Michael, there were four or five of us at that OTC meeting. Our purpose was to urge them to vote in favor of putting “No Parking” signs in those areas.
Happily, the commission voted unanimously to enact these suggested rule changes. This will be extraordinarily helpful for Michael and other wheelchair users. It will also help him continue to travel around Oregon and do his important work, which has included serving on the State Independent Living Council and the Oregon Disabilities Commission.
As a colleague once wrote about Michael, “While [he] can no longer stand or walk and while his voice must be amplified by a microphone, Mike always stands up for the rights and well-being of others, and his voice is heard loud and clear.” Now he has a better chance of actually arriving at the places where he can talk about the rights of those with disabilities.
I won’t sugar-coat it: climbing up stairs can be exhausting, embarrassing and dangerous when you have multiple sclerosis. And of course, there’s no point in even trying if you are a wheelchair user.
That’s why the Americans with Disabilities Act (ADA) has been such a godsend to those of us with MS and other mobility impairments. More and more, we don’t have to gaze up at a store, a government building or a museum and make an instant analysis of whether getting there is worth the often tortuous journey. Thanks to the ADA, there are increasing numbers of ramps and elevators that solve the problem.
But I can’t reflect on the ADA without also mentioning the incredible people and events that made its passage possible. Here are just a few of them:
Ed Roberts, the Rolling Quads and the Independent Living Movement
Like many pioneers of the disability rights movement, Ed Roberts had polio. He was initially denied admission to U.C. Berkeley in 1962, because “We tried cripples before and it didn’t work.”
But Roberts would not be denied. He convinced the administration to admit him and allow him and his iron lung to reside in the campus hospital. Soon, other students in wheelchairs joined him, and the group became known as the “Rolling Quads.”
The Quads helped each other throughout their college years and then extended their assistance to people with disabilities outside of campus, eventually starting the first Center for Independent Living. Similar centers soon sprang up throughout the country.
The Section 504 Sit-In
Eleven years after Roberts was admitted into Berkeley, Congress passed the Rehabilitation Act of 1973. This was the first federal law prohibiting disability discrimination in many businesses and programs. It also requires these entities to make reasonable efforts to accommodate people with disabilities.
But after the fanfare of passage, a strange thing happened: This seminal law was just ignored. Federal officials failed to write the regulations necessary to implement it, and it languished on the books for years.
By 1977, disability activists had had enough. They used a common means of protest at the time – sit-ins. Groups of people gathered at government offices and simply stayed there, demanding that the law be enforced. The longest sit-in was in San Francisco and lasted for five weeks, with some of the demonstrators literally risking their lives by remaining in the building without their attendants or medication. But their efforts paid off – the regulations were implemented and the law was finally put into play.
Gallaudet University, located in Washington D.C, was the first U.S. college to focus on deaf and hearing-impaired students. Its academic tranquility was uprooted, however, when the college president resigned and the board selected a hearing individual to replace him.
This so enraged the students, faculty and alumni that they gathered for a massive rally and sit-in, effectively shutting down the school until the new president resigned and a non-hearing individual was hired to replace her.
Many people were awakened to the cause of disability rights by seeing the poignant images on television of demonstrators silently waving signs that said, “deaf president now.”
As can be expected, there were many attempts to foil the final passage of the ADA. Just in case anyone needed to be reminded of the prescient law’s significance, something extraordinary happened on the day that Congress was inside the capital, ironing out its final compromises. Right outside, a virtual army of people with disabilities had thrown down their walkers and wheelchairs and proceeded to crawl up the capital steps.
More than any words could do, this symbolized the heroism and unyielding doggedness of the disability civil rights movement. All of us, whether or not we have disabilities, owe them our gratitude for moving this country closer towards true equal opportunity.
Few, if any, presidents were as beloved as Franklin Roosevelt.
Roosevelt came to office at a very volatile time in our nation’s history. He is credited with lifting our country out of the Great Depression, as well as rallying the country to defeat a murderous despot.
Roosevelt succeeded largely because of his intellect, his determination and his boundless charisma. Families would crowd around the radio during his “fireside chats” and were comforted and encouraged by what he said.
But few knew the lengths he went to conceal the fact that he could not walk. He had contracted polio at age 39 and his legs were virtually useless. In reality, he struggled to get in and out of cars, often used a wheelchair and even resorted to being carried or crawling on the floor when necessary.
The press did not photograph him during the times he was struggling to move. This was apparently never a stated policy; photographers just put their cameras down during those moments.
But a rare video has just been released that actually shows Roosevelt walking. How did this video come about? It was not taken by the press but by a tourist, who was unaware of this practice and who just kept his camera rolling.
In viewing this video, one is struck by how effective Roosevelt was in hiding his disability. He had undergone years of physical therapy and body building, and had developed the strength to swing his legs forward with his upper body strength. You also can see in the video that he supported himself by holding onto his bodyguard with one arm and a cane in the other. When he reached the podium, he clung to it and his bodyguard discretely left.
When one understands this about Roosevelt, he is even more inspiring. But it’s impossible not to wonder what he also might have accomplished if he didn’t (justifiably) feel the need to put so much time and energy into disguising his disability. And it’s fascinating to ponder if he would handle things the same way today.
You’ve probably been reading about or experiencing the increasing presence of animals on airplanes. They range from the bizarre (an unsuccessful attempt to bring a peacock on board) to tragic (a passenger believing she had to flush her hamster down the toilet, a dog suffocating in a storage bin).
All of this is in reference to the federal law that requires airlines to accommodate passengers with disabilities. The Air Carrier Access Act (ACAA) defines “disability” in the same way as does the Americans with Disabilities Act: a physical or mental impairment that substantially limits a major life activity. That legalese is another way of saying that the limitation must be significant – a temporary illness or even a broken leg are usually not serious enough to fit within the legal definition.
But those lines have become increasingly blurred by press coverage and public discourse, and the prevailing belief now seems to be that ANYONE can have a service or emotional support animal on a plane – just because they can get a doctor to say that they need one.
I and others have written extensively about the damage this does to people with real disabilities who genuinely need those animals to help them while they are on a plane and maneuvering through he rest of life.
Fortunately, as the attached article shows, several airlines are examining their policies on passengers with animals. And there is still time to give your input to the Department of Transportation on this issue.