Wednesday, October 20, 2010

Disability Employment Awareness Month? Really?

Did you know that October is Disability Employment Awareness Month? Apparently, neither did a whole lot of employers. We've gotten more employment-related calls this month than we have in a long time.

There's a major problem with the Americans with Disabilities Act as relates to chronic illness. If you have an illness that meets the definition of disability -- your illness substantially impairs a major life activity, such as seeing, hearing, walking, bowel function, digestive function, immune function, etc. -- you'd think you can't be fired for being out sick, or being late to work. Unfortunately, that's not true. See, in addition to being "disabled," you have to be a "qualified individual." A "qualified individual" is one who can perform the essential functions of the job with or without accommodation. For most jobs, attendance is an "essential function." So if you can't make it to work on a regular basis, you aren't a "qualified individual" and, thus, you are not entitled to the protections of the Americans with Disabilities Act.

The exception, of course, is the Family & Medical Leave Act. If you work for an employer with 50 or more employees and you have been there for a year, you are entitled to FMLA leave -- up to 12 weeks of unpaid leave in a 12 month period. If you take FMLA leave, you can't be fired until you've used it all up. FMLA leave can be taken intermittently, a few days here and there. You have to provide a medical certification, but not your whole medical record. One you use up your FMLA leave, though, you can be fired for absenteeism.

I understand why employers -- especially smaller employers -- can't hold jobs open forever. In some cases, though, I think people could work at least part-time from home, and that would help a lot. But employers seem to be very aggressive even about FMLA. I spoke with a woman last week whose employer sent her for a second opinion when she asked for FMLA leave (she's taken FMLA leave before and her employer is clearly trying to squeeze her out). An employer can only ask for a second opinion if they have reason to doubt the medical certification, but that didn't apply in her case. Still, she's so worried about losing her job that she won't let me intervene. And I understand that.

I spoke to another person last week who was a sales rep for a company -- independent contractor rather than employee -- and he was fired after 23 years because he was sick and was servicing his accounts by phone and email rather than in person. Even though his production numbers stayed high, the company wouldn't let him stay on. Since he was an independent contractor rather than employee, the ADA and FMLA don't even apply.

The stories are all too common these days. Employers are laying off people left and right, so it's no surprise that they'd choose to lay off the people with attendance or other problems. But it's also so unfair to people with disabilities. The law is there to prevent this sort of discrimination, but when it comes to absenteeism, the FMLA is the only protection we have.

So yeah, this is Disability Employment Awareness Month. What I'm aware of is how unequally people with chronic illnesses are treated. Jennifer


  1. Would you hide or lie to a potential employer or a real employer if you thought it would get you hired?

  2. You have no legal obligation to tell an employer you have a disability unless you are requesting FMLA leave or reasonable accommodations under the ADA, and prospective employers are not allowed to ask. I don't consider that lying; it's the law. J