Introduction
If you are one of the approximately 1.4 million Americans with inflammatory bowel disease (IBD), your rights have begun to receive notice and protection,
but there is much more to be done. Federal laws like the Americans with Disabilities Act (ADA) have, until now, focused primarily on people in wheelchairs,
the blind, the deaf, and not those of us with largely invisible chronic illnesses like Crohn's disease and ulcerative colitis. And, until
recently, the law did not incorporate the notion of "chronicity" – the one–word label I use to distinguish chronic illness from either
illness from which you recover or terminal illness – which left those of us with chronic illnesses trying to fit our disease into a model that
was not designed with us in mind, like trying to put a round peg into a square hole. This newsletter will focus on some of the employment–related
questions that you may have as you try to navigate life with IBD. It will also explain how disability–related legislation can work in
your favor.
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Americans with Disabilities Act
Is IBD considered a disability under the ADA?
By far, the most common question I am asked is whether Crohn's disease or ulcerative colitis are disabilities under the ADA. The ADA defines "disability"
as a condition that must substantially limit a major life activity1. There are two parts to that definition: "major life activity" and "substantially
limit." We will discuss each in turn.
In the past, the ADA has defined a "major life activity" as including but not limited to "caring for oneself, performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."
Since major bodily functions, like those related to the digestive and bowel systems, were not included in the list, the burden was on us to make the case that IBD fit the definition.
However, this past fall, Congress passed the ADA Amendments of 2008, which took effect on January 1, 2009. The Amendments state that "disability" includes
major bodily functions, including but not limited to the immune, digestive, and bowel systems. So, starting this year, there is no question that
IBD is considered a disability under the ADA.
In the past, employers also were able to argue that chronic illnesses that come and go do not constitute "substantial limitations" on major life activities,
because they do not limit activities on days when they are in remission. The 2008 Amendments also address this issue. They say that chronic illnesses that would be disabling when active are considered "disabilities" all the time, including when they are in remission. This appears to be the
first recognition of "chronicity" in US law and, as such, it represents a real advance for IBD patients.
Thus, although we always had strong arguments that IBD constitutes a "disability," and we won many cases under the old law, there is now no doubt about
it: IBD is a disability under the ADA.
Does the fact that I have a disability automatically mean I am entitled to protection under the ADA?
No. To be entitled to protection under the ADA, you have to be a "qualified individual" with a disability. Thus, you can be disabled but not "qualified."
To be "qualified" under the ADA, you have to be able to perform the "essential functions" of your job with or without accommodation. The "essential
functions" of your job are the fundamental duties of the employment position you hold (ie, typically those listed in your written job description).
More specifically, if attendance is an "essential function" of your job and your illness prevents you from getting to work every day, you may not be protected
by the ADA, even with the 2008 Amendments. For example, if you work in a call center or as a salesperson in a showroom, then your job requires
your presence in the workplace. Even if you are disabled, you may not be entitled to the protections of the ADA because, even with accommodation,
you can't perform the "essential function" of being present in the workplace every day. On the other hand, if you have the sort of job that can be
done from home, and allowing you to work from home does not constitute an "undue burden" on your employer, then you might be considered to be a "qualified"
individual.
Does the ADA protect me even if my IBD is controlled by medication?
Prior to the ADA Amendments of 2008, the answer to this question was no. However, the new Amendments also address this issue. As of January 1, 2009,
you are considered disabled even if your IBD is controlled by medication, surgery, or other ameliorating measures. For example, an ostomy cannot be
construed as a solution to your disease unless it means you will no longer have flares or other symptoms. Likewise, a so–called ameliorating
measure that leaves you with a new set of symptoms will not be found to eliminate your disability.
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Employment-related rights
What are my rights when I apply for a job?
According to Title I of the ADA (which is the section that relates to employment), you cannot be discriminated against during the recruitment or hiring
process. For example, Title I restricts the questions that a prospective employer can ask about your disability before making a job offer. Note, however, that Title I applies only to employers with 15 or more employees in 20 nonconsecutive workweeks of the current or preceding calendar year. Your
state may have a law that applies similar protections to smaller employers.
I often am asked whether a job applicant should disclose that he or she has IBD. In my view, there are only two reasons to disclose your IBD: if you are
requesting accommodations under the ADA, or if you are requesting leave under the Family & Medical Leave Act2. Both of these will be discussed in more detail below.
Employers are allowed to ask some health–related questions in a job interview. For example, they can ask how you handle stress, whether you work
well under pressure, and whether you have a physical condition that would interfere with your ability to do your job; however, they cannot ask whether
you have a chronic illness, whether you have a disability that would prevent you from performing the essential functions of the job even with accommodation,
or whether you would need reasonable accommodations if you were hired.
Job offers also can be contingent on passing a medical exam. This is permitted only if all candidates for a job are given the same test. The physical
exam cannot exclude you because you have IBD; it can exclude you only if your IBD would make it impossible for you to perform the essential functions
of your job with or without accommodation. It is not the label that counts; it is your ability to function (ie, what you can and cannot do).
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 privileges of employment. It requires employers to provide equal opportunities to qualified individuals with disabilities,
and to protect you against discrimination or harassment due to your disability.
In addition, if you have physical limitations but are otherwise 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 job restructuring, modification of work schedules, acquiring or modifying equipment, or reassigning an employee to a vacant position that is
available and for which the employee is qualified.
This does not mean that everybody who asks for a modified work schedule gets one. Accommodations are considered to be reasonable if they do not impose
an undue hardship on the employer. Undue hardship is "action requiring significant difficulty or expense." Whether a particular accommodation constitutes
an undue hardship depends on the context. For example, if you are one of ten secretaries answering phones, and you need frequent breaks to
use a restroom, that might be reasonable because there are nine other secretaries and it would not be an undue hardship to ask them to cover for you.
On the other hand, if you are the only receptionist in a smaller office, having someone cover for you might be considered an undue hardship.
Typically, reasonable accommodations are negotiated. Your employer doesn't have to give you the exact accommodation you request; instead, he or she must
engage in an "interactive process" to try to arrive at an accommodation that will meet your medical needs and also satisfy his or her business needs.
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 requests an accommodation. In
most cases, if the employee does not ask for an accommodation, the employer is not 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 also will need to submit medical information. The amount of medical information you need will depend, to some extent, on the employer. I have seen employers accept a brief note, and I have seen employers send an employee to an outside 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 does not require an employer to give you the accommodation you want. It is 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 sort of negotiation, and be prepared for genuine give and take. This usually
is the best opportunity you will have to reach a good 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 here: www.eeoc.gov/offices.html. Many state and local governments also have fair employment practices laws and state
agencies that administer those laws. You can file a complaint with one of those agencies, as well. When you file a disability discrimination complaint
with either the state agency or the EEOC, you "dual file" with both. If you file with the state agency, the state agency investigates the complaint;
if you file with the EEOC, the EEOC holds onto the complaint. Either way, your complaint is investigated and evaluated under both state and
federal law. And either way, there is no cost to filing a complaint.
You have 180 days from the last act of discrimination to file a complaint. Typically, you will be asked for any documentation of your claim, and then
you will be asked if you are 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 of your complaint.
Although you certainly can file a complaint without the assistance of an attorney, experienced attorneys who have engaged in many negotiations will 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. Keep in mind that, if an attorney takes your case on a contingent basis
and you lose, you may still have to pay the costs of litigation.
Once you file a complaint and either try and fail to reach a mediated settlement or skip mediation entirely, either the state agency or the EEOC will investigate the case. Once the investigation is completed, the state agency or the EEOC will decide whether it believes discrimination occurred. At that point, you or your employer (or former employer) can request an administrative hearing, which is less formal than court. If you choose that avenue,
the evidence before the hearing officer will be the evidence obtained during the investigation.
Instead of requesting an administrative hearing, ninety 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 experienced employment attorneys do this as a matter of course because investigations take a long time and attorneys may feel that they have more control over the proceedings once the case is out of the agency's
hands. However, if you do not 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.
Do the 2008 Amendments mean I can get disability benefits if I was turned down before?
No. The ADA prohibits discrimination on the basis of disability and requires employers (and others) to provide reasonable accommodations, but it has no
impact on the definition of "disability" used by the Social Security Administration and, therefore, no impact on your ability to obtain Social Security
disability benefits.
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Family and Medical Leave Act
What is the Family and Medical Leave Act?
The Family and Medical Leave Act (FMLA) provides eligible employees with a total of up to 12 workweeks of leave during a 12–month period for one or more of the following reasons:
- for the birth and care of the employee's newborn child;
- for placement with the employee of a child for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- to take medical leave when the employee is unable to work because of a serious health condition
Whether or not you are paid for your leave is up to your employer. Some employers cover portions of leave, for example you may receive pay during the
first four weeks of maternity leave, but no pay for the remainder of the leave. Others may compensate you during your leave if you use accrued vacation
days. If you were receiving health insurance benefits prior to your leave, you are entitled to continue receiving those benefits during your leave. Finally, following your leave, you are 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 to 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 a successor) employer for at least 12 months, for at least 1,250 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 need not be consecutive, and the 1,250 hours cannot include paid or unpaid leave; it includes only hours actually worked. Whether the employee has satisfied
the 12 month/1,250 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?
There are no magic words necessary for an employee to request leave. Generally, it is 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. 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 insufficient.
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 does not
mean that 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 US Department of Labor (http://www.dol.gov/esa/whd/).
What if I need a day here and there, but not twelve consecutive weeks?
An employee can take the leave to receive "continuing treatment by a healthcare provider," including physical therapy or intravenous therapy such as Remicade
or IVIg or chemotherapy, which takes a few hours. You do not have to use all of your leave consecutively; you can use it intermittently.
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Conclusion
The FMLA is your best protection against being fired if your issue is absenteeism. However, the ADA will protect you if you require other types of accommodations.
The ADA Amendments of 2008, which went into effect on January 1, 2009, represent a huge advancement for patients with IBD, and should make it far easier for IBD patients to obtain reasonable accommodations. Note that individual states have added certain restrictions on both the ADA and the FMLA, which may give you additional rights depending on where you live.
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