Joel Dillard PA

Representing Mississippi Workers

Protecting Disabled Employees

You've just fallen very ill, and you worry about your job. You can still work, but things aren't quite the same, and your employer is threatening to end your employment. Do not dispair: federal law protects people in your situation.

Disability discrimination is one of the most common problems of all the issues we address. It is rare that a call comes in about a disability issue where the employer has NOT violated the law.

Fighting Disability Discrimination

Coverage

It is illegal to discriminate against an employee because of his or her medical condition, but there are limits on this protection.

  1. The law only applies to employers with 20 or more employees. Smaller employers are not covered.
  2. The medical condition must be substantially limiting of some major life activity.
  3. The medical condition must be lasting - either permanent or at least of six-months likely duration.
  4. The employee must be able to perform all essential functions of the job - perhaps with a reasonable accommodation (i.e., a little help or adjustment in performing these duties).

Reasonable accommodation

The law requires an employer to provide reasonable accommodation to an employee or job applicant with a covered condition. A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability perform the duties of a job. Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired. Crucial here is the interactive process: once the employer learns that the employee may need some accommodation, the employer cannot make assumptions about what the employee can or cannot do, or what will or will not be helpful; rather, the employer must meet with and work with the employee to find the accommodation that will work.

Disability Discrimination

The employer is also prohibited from firing, disciplining, or harassing an employee because of the condition.

History or appearance of disability

However, even if not disabled at the moment, it is still unlawful to discriminate against a person based on a past history or disability. In addition, if the employer believes a worker is disabled - even if they are not in fact - discrimination on that basis is also prohibited.

Know your rights from the beginning to stop trouble before it starts

This area of law is extremely complex. In particular, employees have to thread the needle to show that they are disabled enough to be covered by the law, but not so disabled that there is no way they can do their job. There are also hazards in asking for accommodation - is the request reasonable? can I insist on an alternative? The answers to these questions are impossible to summarize, and are contained in a long line of cases where the courts have dealt with countless particular situations and given guidance.

It takes a specialist in the area to give sound advice. Every case I've taken in this area has presented some new and interesting issue. It is much easier to spot these issues at the outset, and fix potential problems before they start, than to try to pick up the pieces after things go wrong.

Regarded as Disabled

Today's post is by the firm's summer clerk, Schuyler Konior-Kinneman.

Society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.
– Justice William J. Brennan Jr.

Since the passing of the Americans with Disabilities Act (ADA) in 1990, the law regarding discrimination against those with disabilities has been strengthened. With the amending of the ADA by Congress in 2008, the law provides greater coverage in protecting the employment rights of the disabled. So who is disabled? Although it may seem obvious in the real world, in the legal world it is a complicated issue.

To be considered disabled under the ADA an employee has to meet one of the three requirements: (1) the employee has a physical or mental impairment that substantially limits one or more major life activities; (2) the employee has a record of such impairment; or (3) the employee is regarded as having such an impairment. In other words, even if you are not disabled any more, or if you have never been disabled but other people think you are, then you may be protected by the ADA.

My focus in this post is on the third type: being regarded as disabled. This means the employer cannot rely on stereotypes about people with medical conditions. This factor is becoming a larger part of disability discrimination law since the ADA has recently been amended to make it easier to prove you are regarded as disabled. Promotions, the amount of work hours, pay rate, and general interactions at the workplace can all be affected by an employer's belief that you are disabled.

The standard used to be that an employee had to prove that their employer wrongly believed, not only that they had a medical condition, but that the condition affected them in a major way. Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999). This was often difficult to prove because employers aren't likely to get into the details of exactly what they think employees can and cannot do. Instead they simply act on their beliefs without explanation, then try to justify themselves later.

Congress recognized this problem, and in 2008 amended the ADA to make it crystal clear that someone who is wrongly regarded as having a medical limitation or condition is covered by the Act. This means employees don't have to prove exactly what the employer thought was wrong with the employee. Instead, the employee just has to prove that the employer thought the employee had a limitation or condition which the employee didn't have, and discriminated against the employee because of it.

[A] plaintiff now need only show that his employer perceived him as having an impairment; he is not required to show that he is substantially limited in a major life activity, as is still required to meet the other two definitions of disability. A plaintiff is also not required to show how or to what degree [his employer] believed the impairment affected him.

Mendoza v. City of Palacios, 962 F. Supp. 2d 868 (Dist. Court, SD Texas 2013) (quoting Hilton v. Wright, 673 F.3d 120, 129. (2d Cir. 2012))

I'm glad that Congress has addressed this. It makes it easier for employees who have been mistreated to get some kind of justice. No longer can employers hide behind a technicality to get away with doing terrible things to the disabled.

Family Medical Leave Act

In addition to the disability law, which protects an employee who must miss some work related to a medical condition, the FMLA protects the right of employees at larger employers to miss up to 12 weeks of work per year because of their own illness or the illness of a family member.

Pursuant to MRPC 7.4(a)(2) FREE BACKGROUND INFORMATION AVAILABLE UPON REQUEST

This site is for general information only, and creates no attorney-client relationship. Sending inquiries to the firm does not create an attorney-client relationship.

To get legal advice about an employment law, labor law, federal employee law, whistleblower protection, labor unions, worker cooperatives, immigration, discrimination, harassment, wrongful termination, severance, or any related question, you must first have a conflicts check by the firm. We represent exclusively workers, worker cooperatives and unions, but we still must check for potential conflicts of interest, for example, between a supervisor and employee.

First provide the firm with your name, and the name of the person you are making claims against - and no other information. This allows the firm to check for such conflicts of interest. Until you receive confirmation from an attorney that there is NO CONFLICT, none of the information you provide will be considered confidential. Do NOT provide any confidential information before we have asked you to do so.

Once we have confirmed there is no conflict, you may discuss your matter with the attorney in a little more detail, and, if requested, make an appointment. If at your appointment the firm accepts you as a client in writing, then the attorney will be able to provide you with employment law advice.

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