AVITZUR, ORLY M.D.
When David Keer was 39 years old, he began to experience disabling fatigue and worsening vision due to his multiple sclerosis (MS). Keer had a fully equipped home office and asked his employer, a government agency, to permit him to telecommute part of the day and to provide him with a large screen monitor for his desk at work. While he awaited a response, he exhausted all his vacation, sick, and leave time. Keer had received consistently outstanding performance evaluations, and his ability to get the job done had never been questioned; still, his appeal for accommodations was ignored. The emotional and physical stress took a toll on his health, and by the time his ordeal had dragged on for over a year, he was at the end of his rope.
Catherine List was diagnosed with early-onset Parkinson's disease at age 46. During the past five years, she has developed difficulty writing and typing, and this interferes with her ability to complete the record keeping she needs to submit as a school speech and language therapist. List requested voice-to-text software and extra time for paperwork during the day so that she could continue to do the work she loves, but she has yet to be given these accommodations.
What recourse do you have if you, too, become disabled and find challenges in the workplace?
1 KNOW THE DISABILITY LAWS
Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination against qualified individuals with disabilities and applies to state and local governmental employers and private employers with 15 or more employees.
“The main hurdle that individuals with disabilities face is showing that they are protected by the ADA,” says George Rutherglen, John Barbee Minor Distinguished Professor of Law, University of Virginia School of Law. “To be covered under the law you must show that you are suffering from a condition—mental or physical—that substantially limits you from a major life activity such as walking, seeing, hearing, or caring for yourself,” Rutherglen says.
However, if a patient has a disability covered by the ADA, he still must demonstrate that he is qualified for the job—with or without reasonable accommodations. “It's a fine line for workers with disabilities to declare that they are impaired, but not so impaired that they cannot perform the duties of their job,” Rutherglen explains.
“Controlled epilepsy poses an especially difficult problem,” says Gary Gross, director of the Epilepsy Foundation's Jeanne A. Carpenter Epilepsy Legal Defense Fund. The application of the ADA was narrowed greatly when the Supreme Court determined in a series of cases in 1999 that conditions which are controlled by medication (such as epilepsy, diabetes, mental illness, and even cancer) will not be considered covered disabilities under the ADA unless they result in a substantial limitation in major life activities despite the treatment.
“Ever since, patients with epilepsy whose seizures are fairly well controlled with medication have had great difficulty getting protection under the ADA,” Gross says. “They are nevertheless denied job opportunities due to ignorance and stereotyped views about risks for seizures in the workplace.”
2 ASK FOR REASONABLE ACCOMODATIONS
While safety concerns are a legitimate interest for employers, employees may ask for reasonable accommodations if they constitute cost-effective adjustments to the workplace environment. Examples of accommodations for people with epilepsy might include: allowing breaks to take medication or leave to seek treatment; providing a private area to rest after having a seizure; installing a rubber mat or carpet to cushion a fall; and making adjustments to work schedules.
An employer must make reasonable accommodations unless doing so would impose an undue hardship (taking into consideration the overall size of the company, number of employees, number of facilities, and budget size). While an individual with a disability may request an accommodation, the specific modification granted need not be the one that is requested, but rather one that is effective.
Initially, the employer decides what will be an effective accommodation. If the employee disagrees or the accommodation proves not to be effective, he is free to discuss it with the employer or file a charge with his local or state anti-discrimination/civil rights agency or the United States Equal Employment Opportunity Commission.
To find out what basic changes are considered necessary, the employee should contact the Job Accommodation Network, a free service of the U.S. Department of Labor (1-800-526-7234; email@example.com) and consult with local or national disability groups related to his condition, such the National Multiple Sclerosis Society.
3 WORK WITH YOUR DOCTOR
“It's critical for patients to work together with their doctors in advocating for employment rights,” advises Charles D. Goldman, Esq., who was David Keer's attorney. “Make sure that your physician is supportive and wants to help.”
Goldman, an experienced attorney in Washington, D.C. who has worked extensively on these issues, counsels employees to tell their physicians about their jobs and to provide them with a job description so that they understand the requirements. “Help your doctor to help you,” he advises.
Tell your doctor exactly what you do during the day and how your job duties are affected by your neurological condition, such as fatigue, cognitive difficulties, or problems taking notes or keyboarding.
4 DISCLOSE YOUR DISABILITY AT THE RIGHT TIME
“Persons with disabilities struggle to figure out when to inform their employers about their conditions,” Goldman says. “It's usually a turn-off at an interview, but if you walk in wearing a brace, for example, it's best to be frank,” he advises.
Employers cannot ask if you have a disability, but if the disability is obvious or the employee discloses it, the employer can ask if you need accommodation to do the job. Goldman refers his clients to local disability groups who offer to help people practice the interview process.
5 EDUCATE YOUR EMPLOYER
Many employers are not sure of their responsibilities and need to be educated. Rutherglen suggests that you inform them of your rights. If they insist on neglecting them, tell them that they will be held liable.
“If you encounter a recalcitrant supervisor or manager who refuses to acknowledge your rights, get her response in writing and take it to a higher level—such actions constitute discrimination and are barred by a federal statute,” Rutherglen says. “Document your condition, document your actions, and establish that you are still contributing to the employer's business.”
6 TRY TO NEGOTIATE
However, Rutherglen suggests, keep trying to work things out with your employer before looking for another job or going to court. If you have a good track record with your current employer, it's much easier to negotiate with him than to look elsewhere for work.
Keep in mind that negotiation requires flexibility: claimaints tend to lose when they ask for too much, Rutherglen says. If you ask for the basic, necessary changes and show that you are willing to compromise, you are more likely to reach a satisfactory agreement.
“And if you don't reach an agreement, you've strengthened your position for filing a claim,” Rutherglen says.
Goldman also points out that mediation is faster, and it's voluntary. “If you don't like the deal, you don't have to take it,” he says. Mediation is the most popular form of Alternative Dispute Resolution (ADR). It is a confidential problem-solving discussion facilitated by a neutral third party to identify interests and issues and reach resolution. ADR is encouraged by the Americans with Disabilities Act and utilized by virtually every state and local equal employement/civil rights agency.
7 IF ALL ELSE FAILS, FILE CHARGES
People who feel that they have been discriminated against by an employer may file charges with the Equal Employment Opportunity Commission (EEOC) alleging a violation to the ADA. The EEOC will investigate the charge, and if it finds reasonable cause to believe an ADA violation has occurred, it will attempt to resolve the situation through conciliation—negotiation with both parties to reach an agreement. If conciliation fails, the EEOC will issue a “right-to-sue'” letter authorizing the injured party to file a lawsuit within 90 days.
Gregg McGlasson, a deputy sheriff in corrections in Riverside County, CA, was terminated in March 2003 after he had a seizure, despite being cleared medically to return to full duty. The Sheriff's department decided—without relying on expert medical advice—that McGasson's continued employment in the position would pose an unacceptable safety risk. When the County refused to cooperate with the EEOC investigation, a right-to-sue letter was issued and a legal battle ensued. It took three years, but McGasson was finally reinstated and credited with back pay, and his benefits and retirement plan were restored. He also received additional compensation for all that the County had put him through.
Some organizations representing people with neurological conditions offer assistance or guidance in legal matters. The Epilepsy Foundation, which advocates on behalf of people with epilepsy, assisted McGlasson through the Jeanne A. Carpenter Epilepsy Legal Defense Fund. Despite support for expert legal assistance, the financial burden on the McGlasson family due to loss of employment was catastrophic.
“It was very difficult,” said McGlasson, who had to take a home equity loan and borrow money from family and friends. “Although justice was served and I now work in a very supportive environment, the scars left from this experience remain.”
“Litigation is very stressful and winds up taking a huge toll on people's lives,” Goldman says. Not surprisingly, stress compromises many neurological conditions. Goldman suggests that people considering litigation consult with an attorney who specializes in disability law. Health insurance is the top item to be considered. “Health insurance must be discussed in litigation or mediation, and coverage must be arranged, unless the employee is covered by a group or a spouse,” Goldman adds.
Catherine List recently went out on health leave and is trying to figure out what to do. With the help of his attorney, David Keer was eventually able to negotiate a settlement that would allow him to go back to work in a comparable position in another division of the agency. He advises individuals in similar situations to get a good attorney. “I waited too long,” Keer says. “There has to be a point at which you acknowledge that trying to resolve matters on your own isn't working out.”
What Counts As a Disability?
Deciding what counts as a disability—and whether a disability can disqualify someone for a job—can be tricky. “It's not the cause of a condition that is usually controversial, but its consequences—that is, whether it substantially impairs a major life activity,” says George Rutherglen, co-author (with John J. Donohue III) of Employment Discrimination: Law, Theory, and Evidence (Foundation Press, 2005). For example:
If an individual has poor eyesight that cannot be corrected with eyeglasses, the vision impairment would constitute a covered disability.
If an employee has carpal tunnel syndrome [pain, numbness, or tingling in the hand and wrist due to a nerve in the wrist getting pressed or squeezed] but can perform all the functions of daily living, she would not be considered disabled.
If an employee has uncontrolled epilepsy and is a bus driver or truck driver, he could be considered too disabled to be qualified for the job because he is unable to perform it safely.
FOR MORE INFORMATION
The Job Accommodations Network of the Office of Disability Employment Policy of the US Department of Labor: jan.wvu.edu
For information on how to file a charge with the Equal Employment Opportunity Commission: eeoc.gov/charge/overview_charge_filing.html
The Epilepsy Foundation epilepsyfoundation.org
Jeanne A. Carpenter Epilepsy Legal Defense Fund: epilepsylegal.org
Multiple Sclerosis: Your Legal Rights
by Lanny E. Perkins, Esq., and Sara D. Perkins, Esq. (Demos Medical Publishing, 1999)
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