The information below was compiled and written by
Jennifer C. Jaff, Esq, as updated by Eileen F. Swan, Esq
July 24, 2013
What are my rights at work?
Title I of the ADA protects qualified individuals with disabilities from discrimination with respect to recruitment, hiring, promotion, training, pay, social activities, and other employment privileges. It requires employers to provide equal opportunities to qualified individuals with disabilities and protect them against discrimination or harassment due to disability.
In addition, if you have mental or physical limitations but are qualified for employment, the ADA requires your employer to make reasonable accommodations unless doing so results in an undue hardship for the employer
What are “reasonable accommodations”?
A reasonable accommodation is a modification or adjustment to a job or the work environment that will enable a qualified individual with a disability to perform the essential functions of the job. Accommodations may be as simple as relocating an employee’s desk so that it is near a bathroom or as complex as restructuring a job, modifying work schedules, acquiring or modifying equipment, or reassigning an employee to a vacant position that is available and for which the employee is qualified. A reasonable accommodation might also include paid or unpaid leave for medical appointments, hospitalizations for surgery or to stabilize medication levels, or regular feedback regarding job performance. This doesn’t mean that everybody who asks for a modified work schedule gets one. Accommodations are considered reasonable if they don’t impose an undue hardship on the employer. An undue hardship is an accommodation that would be prohibitively costly; would require substantial changes to the physical environment, nature, or operation of the business; or would require significant difficulty or expense. Whether a particular accommodation constitutes an undue hardship depends on the context. For example, if you’re 1 of 10 assistants answering phones and you need frequent restroom breaks, that might be reasonable because there are 9 other assistants and it wouldn’t be an undue hardship to ask them to cover for you. On the other hand, if you’re the only receptionist in a smaller office, having someone cover for you might be considered an undue hardship.
How do I request a reasonable accommodation?
An employer is required to make a reasonable accommodation only when there is a known disability. Usually, the employee makes a request for an accommodation. In most cases, if the employee doesn’t ask for an accommodation, the employer isn’t required to provide one.
To request reasonable accommodation, you must do so in writing. Your employer may have forms for you to use, or you may be able to submit a note simply stating the nature of your disability and the accommodation you are requesting. You’ll also need to submit sufficient medical documentation to show that the request is medically supported. The amount of information you need will depend, to some extent, on the employer. Some employers will accept a brief note while others will send an employee to an outside medical facility or company physician for examination. Any medical inquiry must focus on the precise need for, and nature of, the accommodation.
Keep in mind that all accommodations are the result of an interactive process between employer and employee. The law doesn’t require an employer to give you the accommodation you want. It’s a process of negotiation to accommodate you in a way that meets your medical needs with the least burden on the employer. There are no limits on what you and your employer can consider. Creativity can be a plus when an employer says no to one proposal, but is open to considering others. You should participate actively in this negotiation and be prepared for genuine give and take. This usually is the best opportunity you’ll have to reach a satisfactory resolution while maintaining a good relationship with your employer.
What can I do if I think my rights have been violated?
If you think you have been discriminated against, you should contact your local office of the Equal Employment Opportunity Commission (EEOC). You can find your local office athttp://www.eeoc.gov/field/. Many state and local governments also have fair employment practice laws, and you can file a complaint with the state agencies that administer those laws. Whether you file a disability discrimination complaint with a state agency or the EEOC, you’ll essentially be filing a “dual file” complaint, meaning that whichever agency is tasked with reviewing the complaint must do so in conjunction with applicable federal or state law. If you file with the state agency, the state agency will investigate the complaint; if you file with the EEOC, the EEOC will investigate. Either way, your complaint is evaluated under both state and federal law. Whether you decide to file with your state agency or with the EEOC, there’s no cost involved.
Under the law, there’s a specified period of time in which to file. Generally, you have 180 days from the last act of discrimination to file. You’ll be asked for any claim documentation, and then you’ll be asked if you’re interested in mediating your dispute. Mediation is not an opportunity to argue the merits of your case; its purpose is to see if you and your employer (or former employer) can reach a negotiated settlement. Whether to engage in mediation with your employer is up to you and should be decided after careful consideration.
Although you can file a complaint on your own, attorneys who are experienced in negotiations can be very helpful at the mediation stage, as well as beyond it. Some lawyers take employment discrimination cases on a contingent basis, which means they get paid only if they win, and they get roughly one-third of what you win. Note that most retainer agreements require you to pay litigation costs even if you lose, so a contingent fee isn’t necessarily free.
Once you’ve filed a complaint, an agency will conduct an investigation and determine whether your employer engaged in discrimination based on your disability. At that point, you or your employer (or former employer) can request an administrative hearing, which is less formal than court. The evidence presented before the hearing officer here is the evidence obtained during the investigation.
Instead of requesting an administrative hearing, 90 days after you file a complaint you have the right to direct the investigation to end, and to take the case directly to court. This is called asking for a “right to sue” letter. Many employment attorneys do this because investigations take a long time and they may feel that they have more control over the proceedings once the case is out of the agency’s hands. However, if you don’t have an attorney, the court process can be technical and daunting. In that case, you may want to let the investigative process play itself out.
What is the Family and Medical Leave Act?
The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 workweeks of leave during a 12-month period for one or more of the following reasons:
- birth and care of the employee’s newborn child
- placement with the employee of a child for adoption or foster care
- care for an immediate family member (spouse, child, or parent) with a serious health condition
- medical leave when the employee is unable to work because of a serious health condition
Whether you’re paid for your leave is up to your employer. Some employers cover portions of leave. For example, you may receive pay during the first 4 weeks of maternity leave but no pay for the remainder of the leave. Other employers may compensate you during your leave if you use accrued sick or vacation days. If you were receiving health insurance benefits prior to your leave, you’re entitled to continue receiving those benefits during your leave. Finally, following your leave, you’re entitled to return to your original job or a similar job with equivalent pay and benefits.
The FMLA applies to all public agencies (state, local, and federal), including schools and private-sector businesses that employ 50 or more employees in 20 or more nonconsecutive workweeks in the current or preceding calendar year.
The FMLA applies only to an employee who has been working for the same (or successive) employer for at least 12 months, for at least 1250 hours during the previous 12 months, at a location where at least 50 employees are employed by the employer within 75 miles. The 12 months of employment don’t need to be consecutive, and the 1250 hours cannot include paid or unpaid leave; it includes only hours actually worked. Whether the employee has satisfied the 12 month/1250 hour requirement is determined as of the date the leave would commence. The 50 employee/75 mile requirement, however, must be met as of the date the employee gives notice of the need for leave.
How do I request FMLA leave?
It’s the employee’s responsibility to give notice of the need for leave. Notice may be given either in person or by telephone, telegraph, fax machine, or by other electronic means. In addition, someone other than an employee may give the notice. Notice includes advising the employer of the anticipated timing and duration of leave. Simply saying “I have lupus” is not enough. Note that many courts have said that an employer’s knowledge of an employee’s medical condition and that the employee was seeing a doctor doesn’t mean the employer had notice of the employee’s need for leave.
Filing an FMLA complaint is similar to filing a discrimination-related complaint, except that you do so with the Wage and Hour Division of the U.S. Department of Labor (http://www.dol.gov/whd/).
What if I need a day here and there, but not 12 consecutive weeks?
An employee can take the leave to receive “continuing treatment by a health care provider,” including physical therapy or intravenous therapy, such as Remicade or IVIg or chemotherapy, which takes a few hours. You don’t have to use all of your leave consecutively; you can use it intermittently.