Joel Dillard

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.



The new paid leave law for coronavirus, in plain english

Between April 2, 2020 and December 31, 2020, certain amounts of mandatory paid leave will be available to certain employees under federal law. This is the result of H. R. 6201, called the Families First Coronavirus Response Act. But as usual, news reporting is weak and unclear, and the law itself is very technical and a mess to read. The law has eight sections and the text is forty-three pages long. And you basically need to already know what it says - and what both the Fair Labor Standards Act and Family Medical Leave Act say - in order to understand it.

Want to know what the law says in plain english? You are in the right place.

The law has some significant appropriations to health departments in the government, sections addressing free/reduced school lunch during Covid-19 school closures, unemployment insurance, free Covid-19 testing, and other important issues. But our focus right now will be on the sections dealing with leave.

There are two completely separate types of Covid-19 leave in the law. The first is broad but short, and gives two weeks paid leave for various Covid-19 impacts. The second is much longer, but deals only with leave to care for children during school/daycare closure. (A third section gives a tax credit to employers to pay for the leave. We won't be discussing it here.) The two provisions are very different, and so it is crucial to avoid getting the different requirements and benefits mixed up.

But at the outset it is important to note three big limits in the law. First, the law does not apply to large employers (more than 500 employees). Second, the application to small employers - those with fewer than 50 employees - is at this point a bit unclear (as will be discussed below). Third, it is also inapplicable to healthcare employees and those working in emergency response. With that said, let's get down to it.

DIVISION E: Two-weeks Covid-19 paid leave

You are entitled to two weeks of fully- or partially-paid coronavirus leave for any of the following reasons:

  1. You are issued an official quarantine order from any government body (full pay, but capped at a max of $511 per day)
  2. A treating doctor or nurse has advised you to self-quarantine (full pay, $511/day cap)
  3. You have symptoms of Covid-19 and are going to get diagnosed (full pay, $511/day cap)
  4. You are caring for someone (anyone?) on quarantine or self-quarantine under #1 and #2 above (2/3rds full pay, $200/day cap)
  5. You are caring for your son or daughter during a school/daycare Covid-19 closure (2/3rds pay, $200/day cap)
  6. Other circumstances (looks like HHS will make a rule defining this) (2/3rds pay, $200/day cap)
Some key points about this leave:

Lastly, there is one great big caveat. The law authorizes DOL to issue a rule to exempt small employers when the leave would jeopardize the viability of the business as a going concern. At this point, it is completely unknown what this will mean in practice. I have doubts that a blanket exemption of businesses with fewer than 50 employees would pass judicial review, but it is difficult to tell at this point how DOL (or the judiciary) is going to approach this issue.

DIVISION C: Longer leave for school/daycare closure due to the pandemic

The second type of leave is described in Division C of the Act. It provides for a longer period of leave (as under the FMLA), but it is only available if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. In other words, this only covers leave to watch your child during a school closure. Leave for your illness or others' illnesses is still limited to the normal unpaid FMLA leave. This does not provide paid leave to avoid exposure or practice general social distancing.

It also does not apply if you are able to telework. Which means that you will be expected to watch your children while working from home. (It is unclear how employer rules prohibiting this will be applied. If the employer has a rule which prohibits simultaneously teleworking while providing childcare, then the employee is probably eligible for Covid-19 leave from work for school closures. Practically, I expect this means the employers will suspend this rule during the outbreak.)

School-closure leave: Paid or unpaid? Both.

The first 10 days of school-closure leave is unpaid - likely because you are expected to take your general Covid-19 leave under Division E during this time. In addition, if you have accrued annual or sick leave you can use it during these ten days to get paid. After that, the leave is still only sorta paid leave. It is actually only 2/3rds pay - not full pay - and is capped at $200 per day and $10,000 total per employee during the closure.

School-closure leave: Employers and employees covered

Unlike the one-year period under the FMLA, leave under this section is available to an employee who has been employed for at least 30 calendar days.

As for which employers are covered, on its face it initially looks like almost all will be. But this is an area where the language and intent of Congress has gotten awfully confused.

First of all, once again, mega employers with over 500 employees are not covered. And DOL is authorized to pass a rule exempting employers with fewer than 50 employees when the law would jeopardize the viability of the business as a going concern.

Second and even more problematic, if an employer with fewer than 50 employees breaks the law, the employee cannot sue in court. Instead, it looks as though the only way the employee can enforce this part of the law against an employer with fewer than 50 employees is to bring a complaint with DOL and convince them to initiate an enforcement action.

One final note, by the way, I love Congress.gov. The Mississippi legislature should take note. Our legislature's methods, record-keeping and public information platforms are about a century out of date. In addition to its bizarrely session-focused procedures and deadlines, there is no legislative history, no real way to track what is happening and what it means. We should all be deeply embarrassed for them. I think it is time for a reboot.

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