four. Chronic Illness and the Law

Joy M.'s comment:

My disease makes me very sensitive to sunlight and fluorescent light. The light makes my disease flare. Of course, we have fluorescent lights in the office. There are about 10 of us working in cubicles in this single room. I can't control the light. I asked my boss to put filters on the lights, and she refused. She said it was too expensive. She even laughed at me because she didn't believe that the lights could make me sick. This is discrimination! Isn't there a law about this? What about the ADA, doesn't it say that employers have to make reasonable accommodations for people who need it? Maybe I should get a lawyer!

What rights do I have under the Americans with Disabilities Act?

Some chronic illnesses are disabling. According to the Council for Disability Rights:

Forty-three million Americans have physical or mental disabilities. Too often they are excluded from the mainstream of American life by attitudes and inaccessible environments. Sixty-seven percent of all people with disabilities are unemployed, even among college graduates. The ADA benefits all of us. Each of us has a 20% chance of becoming a person with a disability and a 50% chance of having a family member with a disability.

The Americans with Disabilities Act (ADA) recognized that the disabled are often discriminated against. The ADA defines the rights of the disabled much like the Civil Rights Act of 1964 addressed racial discrimination. But the ADA is often misunderstood.

The ADA covers people with disabilities that substantially limit one or more major life functions (eating, breathing, caring for oneself, working, walking, etc.). When it comes to employment, only companies with more than 15 employees are required to comply. If you ask for accommodations and the employer can prove that it is an undue hardship, the employer does not have to comply. And an employer does not have to provide reasonable accommodations unless the employee asks for them.

Employers are not allowed to ask job applicants about disabilities. Employers are allowed to ask if the applicant can perform the duties of a job. Medical examinations can only be required if they are job related, consistent with the employer's business needs, and required of all employees entering similar jobs. Drug testing is permitted. Any medical information obtained by the employer must be kept confidential. Employers who hire disabled people may be eligible for a small business tax credit. The ADA also covers accessibility to public transportation, to existing buildings and new construction in public accommodations, as well as communication media.

Be advised that no matter how well-crafted and no matter how well-intentioned this act is, people find ways to circumvent it and discriminate anyway. The law is good. It's just not foolproof. If employers want to get rid of you because of a disability or a request for reasonable accommodation, they will find another way. Proving discrimination may be difficult. If you decide to do that, be sure you understand the law and be certain that your case is well documented.

What is the Family Medical Leave Act (FMLA), and how does it affect me?

If you have a chronic illness and are still able to work, there's a good chance that between your illness and the number of medical appointments required, you will use up any sick or paid time off before you make it through half a year. Once you use up your paid time off, you might be able to invoke the Family Medical Leave Act (FMLA). Here are some things you should know.

FMLA applies to all public agencies, including state, local, and federal employers, local education agencies (schools), and private-sector employers who employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers and successors of covered employers. If you work for a small business with a handful of employees, you are not covered.

To be eligible for FMLA benefits, an employee must:

• Work for a covered employer

• Have worked for the employer for a total of 12 months

• Have worked at least 1,250 hours over the previous 12 months

• Work at a location in the United States or in any territory or possession of the United States where at least 50 employees are employed by the employer within 75 miles.

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

• For the birth and care of a newborn child of the employee

• For placement with the employee of a son or daughter for adoption or foster care

• To care for a spouse, son, daughter, or parent with a serious health condition

To take medical leave when the employee is unable to work because of a serious health condition For qualifying exigencies arising out of the fact that the employee's spouse, son, daughter, or parent is on active duty or call to active duty

Your employer is required to maintain your group health insurance during FMLA. You are required to make whatever contribution to that insurance that you were making prior to taking leave. When you return to work, you have rights to job restoration. Upon return from FMLA leave, an employee must be restored to the employee's original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. FMLA is not paid leave.

Your employer is required to maintain your group health insurance during FMLA.

Just as with invoking the ADA, good judgment and caution should be used when deciding to use FLMA. When in doubt consult an attorney who specializes in labor law.

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