Lupus

Monday, May 20, 2013

Lupus and Employment Rights

Living with lupus can cause symptoms such as fatigue, pain, sensitivities to cold, light, heat and many other issues.  These issues can make working hard but manageable for some of those who have the illness.  Employers must supply the employee with reasonable accommodations according to the Americans with Disabilities Act (ADA).  There are many rights you have when you have a disabling illness if you qualify.

http://www.hss.edu/conditions_lupus-employment-rights-knowing-options.asp

Lupus and Employment Rights: Knowing Your Options

 

Summary of a presentation given to the SLE Workshop at HSS

Judy Keenan, Esq.
Supervisory Trial Attorney, New York District Office
United States Equal Employment Opportunity Commission

I. Introduction
II. Equal Employment Opportunity Commission
III. Americans with Disability Act
IV. Medical Information
V. Confidentiality
VI. Reasonable Accommodation
VII. What to do if you think you have been subject to discrimination

Introduction

Many people living with lupus struggle to maintain full-time employment. Their health problems might require them to take time off from work to go to doctor’s appointments or to recover from flares. Lupus symptoms may also make it difficult for individuals who are working to fulfill all their job responsibilities.
People living with lupus may not know what their employment rights are, especially when it comes to asking for reasonable accommodation, or if their employer discriminates against them due to their disability status.
Judy Keenan, a Supervisory Trial Attorney at the U.S. Equal Employment Opportunity Commission (EEOC), educated members of the SLE Workshop on their employment rights specifically guaranteed under federal law.
There are laws at the city, state, and federal level that protect individuals from different types of employment discrimination. An example of one such important law is the Americans with Disability Act (ADA). The ADA is a federal civil rights law that prohibits employment discrimination against individuals with disabilities.
At the time of this posting, the following information is current and correct. However, since proposed changes to the ADA are pending in Congress and may be amended in ways that could substantially change the law, please contact the Equal Employment Opportunity Commission (EEOC) at 1-800-669-4000/6820 or http://www.eeoc.gov/ for the most up-to-date information.

Equal Employment Opportunity Commission (EEOC)

The Equal Employment Opportunity Commission (EEOC) is a federal government agency that enforces federal laws that prohibit employment discrimination. These laws include, but are not limited to:
  • Title VII of the Civil Rights Act, which prohibits discrimination due to race, color, religion, sex, or national origin.
  • Age Discrimination in Employment Act of 1976, which provides protection from discrimination of people over the age of 40.
  • Equal Pay Act of 1963: which prohibits wage discrimination due to gender.
  • Americans with Disabilities Act, which is a federal civil rights law that prohibits employment discrimination against individuals with a disability.
In addition to enforcing employment laws, the EEOC also provides training to employers in an effort to prevent employment discrimination.

Americans with Disabilities Act (ADA)

As Ms. Keenan explained to the group, the ADA is a federal civil rights law that prohibits employment discrimination against people with a disability. The law protects against discrimination in the hiring and application process. The law also prohibits discrimination in the terms and conditions of employment. An example would be giving someone less desirable job duties due to their disability status.
The ADA also protects individuals from pay and promotion discrimination; an individual cannot be paid less or promoted differently due to their disability status. Included in the ADA is the prohibition of harassment of a person for their disability status. The law also prohibits retaliation against individuals who engage in protected activities, which includes asking for reasonable accommodation, seeking assistance from the EEOC, or asking that discrimination against themselves or others be stopped.
In addition to these protections, the ADA also regulates when and what type of medical information or exams employers can request. The ADA also has requirements for how disability status and medical information is to be kept confidential.
Ms. Keenan pointed out that the ADA is very complicated - and potentially confusing - legislation that different courts may interpret differently. In addition, there may be local city or state laws that may provide additional protection.
She also explained to the group that the ADA only provides protection if your employer has 15 or more employees. In addition, the law protects discrimination against qualified persons with a disability. In order to receive legal protection under the law, an individual must be able to perform the essential functions of the job, with or without reasonable accommodation, and meet the requirements of education, training, and skills of the job that he or she wants or has.
Under the ADA, a disability is defined as a physical or mental impairment that substantially limits one or more major life activities. An impairment is interpreted to be a condition that affects one or more body systems, e.g., the respiratory system, musculo-skeletal system, digestive system, or the emotional and psychological systems.
Ms. Keenan also shared an important point: namely, that many people with lupus would be able to meet the criteria for impairment; however, a diagnosis of lupus is not enough to give you protection under the ADA.
These impairments have to substantially limit one or more major life activities, which can include (but are not limited to) caring for oneself, walking, sitting, standing, or sleeping. It is important to note that different courts interpret what are considered to be major life activities.

Medical Information

Under the ADA, an employer cannot ask about an individual’s disability during the application process. They are also forbidden from requesting medical exams and drug tests during this process. An employer can ask an individual if he or she is able to carry out, with responsible accommodations, the essential functions of the job.
Once an offer of employment is made, an employer can request drug testing or a medical exam if it is being requested of all employees.
There are special circumstances when an employer can request a medical exam or medical information. An example of such a circumstance is when there is a possible safety concern or the possibility that an employee cannot do the essential functions of the job.
Employers can also request medical information if an employee requests an accommodation or asks for sick leave.
None of the of the medical information gathered by an employer is to be used to discriminate against an employee.

Confidentiality

The ADA has regulations on confidentiality. All medical information that is collected about an individual, including requests for reasonable accommodation, are to be kept strictly confidential. Ms. Keenan explained that this information is not to be stored in an employee’s personnel file, but kept separately.
There are certain circumstances where an employer may have to disclose such confidential information; an example would be disclosing such information to those responsible for safety matters or emergency situations, which an employee might need to provide for additional assistance in case of an emergency. Even in such circumstances, only limited information is to be shared.

Reasonable Accommodation

A reasonable accommodation is an adjustment or change to job duties, environment, or schedule provided by an employer, so that a person with a disability can benefit from equal employment opportunities. An individual with a disability may request reasonable accommodation from an employer during the hiring/application process or while employed.
Under federal law, an employer has a duty to provide reasonable accommodation unless it provides an undue hardship. In order to receive such an accommodation, an individual has to demonstrate that they are disabled and that the requested accommodation is reasonable and related to their disability.
Ms. Keenan notes that reasonable accommodation can include many different things, because disabilities can affect people in different ways, and each person’s working situation is different. A reasonable accommodation requested by one person living with lupus may not be needed by another person with lupus. Some examples of reasonable accommodations that someone with lupus might request include the following:
  • Leave time to recover from a flare
  • A modified work schedule
  • Working from home
  • Special equipment that might reduce fatigue or pain while working.
An employee who would like to receive a reasonable accommodation can request one from their employer in a plain letter written in English, or in person. Ms. Keenan explained that depending on the relationship that one has with their employer, they may feel more comfortable having a discussion with a supervisor; others who do not have such a level of trust may wish to submit their request in writing. Employers may request additional information about the impairment or disability.
Employers are not required to provide such accommodations if it will provide undue hardship, such as those accommodations that would lead to significant difficulty or expense.

Ms. Keenan provided the group with an excellent resource about disability accommodation specifically for people with lupus. The Job Accommodation Network(http://www.jan.wvu.edu/media/lupus.html) is a federally funded online publication series to assist employers in complying with their employees’ ADA rights. This is a useful resource for both individuals with lupus who are working and their employers.

What to do if you think you have been subject to discrimination

Ms. Keenan also explained to the group what they could do if they thought they had been subject to discrimination. If a person believes that they have been discriminated against, they can contact the EEOC. A charge must be filed with EEOC within 180 days from the date of the alleged violation, in order to protect the charging party's rights. This 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law. For Age Discrimination in Employment Act (ADEA) charges, only state laws extend the filing limit to 300 days.
If you are interested in filing charges, you can contact the EEOC’s intake line for an Intake Interview, or complete an online assessment. These screenings are to see if the laws that have been violated are ones that are enforced by the EEOC. If the laws are covered by the EEOC, the individual will be given the procedure to file a charge.
If you are a resident of New York City, you can also contact the New York City Commission on Human Rights (www.nyc.gov/cchr) or the New York State Division of Human Rights athttp://www.dhr.ny.gov/ or 1-888-392-3644.
You can contact the EEOC at 1-800-669-4000/6820 or http://www.eeoc.gov/.

Lupus and the Americans with Disabilities Act

By , About.com Guide
Lupus and the Americans with Disabilities Act
Disability Support
Murat Cokeker @Dreamstime.com
See More About
The Americans with Disabilities Act (ADA) of 1990 provides strong and enforceable protection for members of the American workforce who suffer from disabilities. The ADA specifically forbids all employers from discriminating against qualified individuals in terms of hiring, firing, pay, promotion, training opportunities, and all other employment-related terms, conditions, and privileges. The ADA applies to private employers with more than 15 employees, as well as governmental entities, labor unions, and employment agencies.

Who is Covered by the ADA

Many times people want to know if lupus-related disability is covered by the ADA. In fact, ADA isn’t based on a particular medical condition. The broad language of the ADA may be applied to most illnesses. ADA protection applies to members of the American workforce who meet the general definition of disability that is written into the law. Some lupus patients meet the ADA definition of disability, and some do not.
By definition, a person with a physical or mental impairment that substantially limits one or more major life issues is considered to have a disability under the ADA. A person whose lupusis in remission, or exhibits only very mild symptoms, is not likely to fall under the scope of the ADA. However, a lupus patient who requires dialysis as a result of lupus nephritis probably will meet the definition of disability.

Ada in the Workplace

The ADA requires employers to make reasonable accommodations for workers with disabilities. ADA mandated accommodations afforded to workers with disabilities are evaluated on a case-by-case basis. An accommodation is simply a modification made to a job or work environmentthat provides an individual with a disability an opportunity to be on a level playing field with a non-disabled worker.
Accommodations can be looked at as a means to bridge the gap between the essential functions of the job and what a person with a disability is able to do without accommodation. A key component of the ADA is the concept of a reasonable accommodation. For example, there probably is no reasonable accommodation for a massage therapist who loses the ability to move his or her arms. There is nothing an employer can do to bridge the gap between being able to provide massages to a client and arm paralysis. However, in would be reasonable to expect an employer to provide a larger monitor for a data entry worker who is vision impaired if the accommodation would raise her job performance to that of non-vision impaired individuals. Most cases of questions regarding disability-related accommodation are not so clear-cut.

Lupus and the ADA

Lupus patients frequently experience fatigue. Reasonable accommodations for a worker experiencing fatigue could include things such as allowing the worker to: telecommute, work a flexible schedule, take periodic rest breaks, or use a scooter. Any such accommodation would have to be reasonable for the job. Telecommuting would probably not be a reasonable accommodation for an operating room nurse, but flexible scheduling might be a win-win accommodation option for the employer and the employee. However, telecommuting might be an excellent accommodation for a person employed as a copy editor for a magazine or newspaper.
Lupus patients who exhibit Reynaud’s Phenomenon are very sensitive to cold. Reasonable accommodations for a worker with Reynaud’s Phenomenon could include: a modified dress code, providing a heater for the employee’s workstation, and redirecting HVAC vents. Providing a heater for the employee’s workstation would likely be a reasonable accommodation for an accounting clerk. However, if the employee is a bus driver it would probably not be feasible or safe to provide an additional heating device. Allowing the bus driver to wear a jacket or a sweater with his or her uniform, however, would probably be a reasonable, win-win accommodation for everyone involved.

JAN Network

To learn more about the ADA, or how it might be applied to your specific situation, contact The Job Accommodation Network (JAN). The JAN is a free resource provided by the United States Department of Labor, Office of Disability Employment Policy, and can be reached by calling 800-526-7234. JAN can provide information to workers and employers regarding the general ADA information, recommendations for job accommodations, and employment issues associated with disabilities.
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