Edited by Frederick A. Matsen, III, M.D.
People with arthritis have rights
Federal laws have made the playing field more level for people with arthritis and other disabling conditions who wish to remain employed. The Americans with Disabilities Act of 1990, and its “ancestor” the Rehabilitation Act of 1973, give important protection to workers in the private sector and the federal government. The Family and Medical Leave Act also provides relief to workers faced with lengthy absences because of illness. Your state also may have laws that protect people with disabilities from discrimination.
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA), passed by Congress in 1990, is the most extensive legal bill of rights for people with disabilities. It bans discrimination against people with disabilities in many areas, including hiring and employment. At the same time, it protects employers from having to make changes that are unreasonable or expensive.
While the ADA gives people with disabilities specific rights, the exact meaning of many of its terms such as unreasonable, undue, or essential probably will be decided by the courts.
The ADA and employment
The ADA applies to companies employing 15 or more people. It bans discrimination against qualified individuals with disabilities by private employers, state and local governments, employment agencies, and labor unions. It applies to all aspects of employment, including hiring, job assignments, training, promotion, pay, benefits, and company-sponsored social events.
For you to be considered an individual with a disability, arthritis must “substantially limit” a major life activity such as walking, performing manual tasks, or working. To be considered qualified you must:
• have the education, skills, and experience the employer requires.
• be able to perform the essential functions of the job–those that might be listed in an advertised job description – with or without reasonable accommodation.
Reasonable accommodation means any changes in a job or work place needed to enable an individual to:
• apply for a job
• perform the essential functions of the job
• enjoy all the benefits and privileges of employment
Examples of reasonable accommodation include:
• part-time or adjusted work schedules
• job restructuring–for example, changing your job to cut out non-essential activities that you have trouble doing
• providing assistive equipment or devices
• providing an access ramp or making the work place more accessible
• changing the height of a desk
Changes that would put undue hardship, defined as significant difficulty or expense, on an employer are not considered reasonable accommodations. If accommodations are needed, the employer cannot ask you to pay for them, and he or she cannot pay you less to cover the cost of the accommodations. If the cost of the accommodation is an undue hardship for the employer, he or she must give you the choice of providing it for yourself or of sharing in the cost. Keep in mind that an employer is not required to place you in a particular job if he or she believes that doing so would put you or others at increased risk.
Your employer must offer you the same health insurance benefits offered other employees. For this reason, he or she can offer health insurance policies that do not cover pre-existing conditions like arthritis. He or she does not have to offer you extra benefits to cover your particular medical condition.
Does the ADA help me get around?
The ADA says that state and local government services and “public accommodations” must be accessible to, or easily entered and used by, people with disabilities. Public accommodations include places like restaurants, doctors’ offices, and private schools and colleges.
Public bus and train systems also must be made accessible to people with disabilities, and so must private bus and van companies.
can I make the ADA work for me?
The ADA and the legal rights it creates give you the tools to be an effective advocate for yourself and to work with your employer for your mutual benefit.
If you still feel you have not been treated fairly, the ADA allows you to file complaints with the Equal Employment Opportunity Commission (EEOC) and other federal agencies. However, the ADA also encourages other ways of settling disagreements, such as negotiation, mediation, mini-trials, and arbitration. This makes good sense, since litigation may be time consuming and costly and may not achieve your goal.
If you wish to file a formal complaint, you should contact the field office of the EEOC within 180 days of the time the incident happened. Ask your employer to give you a copy of all letters and reports regarding your situation. Keep them together in a safe place so that it will be easier for you to prove your case, if necessary. If your complaint is upheld, you are entitled to a remedy that will place you in the position you would have been in if the discrimination had never occurred. You may be entitled to hiring, promotion, reinstatement, back pay, or reasonable accommodation, including reassignment to a different job. You may also be entitled to attorney’s fees.
The Rehabilitation Act of 1973
The Rehabilitation Act of 1973 was the model for the ADA and contains many of the same protections for people with disabilities. It applies to the federal government and all its agencies, to companies that do business with the federal government, and to institutions that receive federal financial assistance.
The Americans with Disabilities Act and the Rehabilitation Act ban discrimination against people with disabilities in hiring, promotion, and other aspects of employment.
The Family and Medical Leave Act
The Family and Medical Leave Act (FMLA), which went into effect in August 1993, includes a provision that allows employees to take up to three months unpaid medical leave per year if they are unable to work because of a serious health condition. You can take FMLA leave all at one time, intermittently (at different periods), or by working part-time. For example, you could use FMLA leave to receive “continuing treatment”, such as physical therapy, from a health care provider.
The FMLA applies to companies that employ 50 or more workers within a 75-mile radius. To be eligible for family leave, you must have worked for your employer for 1,250 hours in the previous 12 months. Whenever possible, you should provide advance leave notice and medical certification.
Your employer must allow you to take unpaid leave to care for:
• a newborn, adopted, or foster child
• a spouse, child, or parent who has a serious health condition
• your own serious health condition
You may take “intermittent leave” or work a reduced leave schedule (fewer hours per day) with employer approval. When you return to work (except in certain cases), you must be restored to your original or equivalent positions with equivalent pay, benefits, and other terms of employment. Your medical insurance benefits must be continued on the same terms.
It is against the law for your employer to interfere with or deny rights granted under the FMLA. All employers are required to post notices of rights under the FMLA.
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