Disability and FMLA Issues

Unfortunately, injuries at work and outside of work are common and they may quite drastically impact people’s lives and ability to do their jobs. Many people have even been in accidents so devastating that their lives were totally altered and they were unable to work any longer. The emotional and physical impact of life-altering disabilities may lead to severe depression and other physical problems, especially if you trained extensively for your career and can no longer do what you studied to do.

Common injuries tend to include car accidents, overexertion, falls and extreme temperatures. In the instance of car accidents, those who drive for a living are statistically at an increased risk for injuries due to an accident because of the time they spend on the road. Overexertion occurs often in many work sites when someone tries to lift something heavier than they are able to carry. The result is often debilitating back problems.

Falls are also more common than one would think and may encompass falls from a ladder while working in a warehouse, falling off a roof or falling down stairs. The varieties of injuries that result from falls down stairs are legion and may be quite severe. For those working outside, extreme temperatures may cause everything from frostbite to burns.

The Americans With Disabilities Act (ADA)

Disability discrimination occurs when an employer or other entity covered by the ADA, the Rehabilitation Act, or any equivalent state or local statute or ordinance, treats a qualified individual with a disability who is an employee or applicant unfavorably because he or she has a disability.

The law forbids disability discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.

Disability discrimination also occurs when a covered employer or other entity treats an applicant or employee less favorably because she has a history of a disability (such as cancer that is controlled or in remission) or because she is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if she does not have such an impairment).

The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer (“undue hardship”).

The law also protects people from discrimination based on their relationship with a person with a disability (even if they do not themselves have a disability). For example, it is illegal to discriminate against an employee because her husband has a disability.

It is also illegal to harass an applicant or employee because he has a disability, had a disability in the past, or is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment). Harassment can include, for example, offensive remarks about a person’s disability. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when

it results in an adverse employment decision (such as the victim being fired or demoted).

The harassed can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer. If you have been such a victim of this harassment, contact a Chicago employee harassment attorney at The Coffey Law Firm.

“Reasonable Accommodation” Under the ADA

The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer.

A reasonable accommodation is any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment. Reasonable accommodation might include, for example, making the workplace accessible for wheelchair users or providing a reader or interpreter for someone who is blind or hearing impaired.

While the federal anti-discrimination laws don’t require an employer to accommodate an employee who must care for a disabled family member, the Family and Medical Leave Act (FLA) may require an employer to take such steps. One exception to the general reasonable accommodation rule is that an employer doesn’t have to provide an accommodation if doing so would cause undue hardship to the employer.

Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost. An employer does not have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide.

Definition of “Disability” Under the ADA

Not everyone with a medical condition is protected by the law. In order to be protected, a person must be qualified for the job and have a disability as defined by the law. A person can show that he or she has a disability in one of three ways:

• A person may be disabled if he or she has a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning).
• A person may be disabled if he or she has a history of a disability (such as cancer that is in remission).
• A person may be disabled if he is believed to have a physical or mental impairment that is not transitory (lasting or expected to last six months or less) and minor (even if he does not have such an impairment).

Disability & Medical Exams During Employment Application & Interview Stage

The law places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability. For example, an employer may not ask a job applicant to answer medical questions or take a medical exam before extending a job offer. An employer also may not ask job applicants if they have a disability (or about the nature of an obvious disability).

An employer may ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation.

Disability & Medical Exams After A Job Offer For Employment

After a job is offered to an applicant, the law allows an employer to condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam.

Disability & Medical Exams For Persons Who Have Started Working As Employees

Once a person is hired and has started work, an employer generally can only ask medical questions or require a medical exam if the employer needs medical documentation to support an employee’s request for an accommodation or if the employer believes that an employee is not able to perform a job successfully or safely because of a medical condition.

The law also requires that employers keep all medical records and information confidential and in separate medical files.

The Federal Family and Medical Leave Act (FMLA)

The FMLA provides that large companies must allow their employees up to 12 weeks of unpaid leave if they are seriously ill, are dealing with complications from a pregnancy, are new parents or are caring for a family member with a serious health problem. Be aware that not all workers are entitled to this leave.

We will be glad to explain that to you when we meet.

Here are some of the things that you need to know right up front before we discuss your particular situation.

• Which companies/businesses are covered? The FMLA is aimed at businesses with 50 or more workers. Companies with over 15 employees must allow pregnancy disability leave.
• What about employee’s notification of rights? The employer is required to post notices to inform workers of their FLA rights.
• How long do I have to work? You have to have been working for at least one year before the FLA applies to you.
• Are part-time employees eligible? Yes, but only for those who have worked at least 1,250 hours during the past year.
• When am I eligible for leave under the FLA? When the worker suffers from a serious health condition that means they can’t work; needs to care for a child, parent or spouse who is ill; is caring for a newborn or newly adopted child or new foster child; for prenatal care and pregnancy related illnesses or giving birth.
• Which family members are covered? The employee themselves, their spouse, parents and children. This doesn’t apply to domestic partners, sisters, brothers, grandparents or grandchildren.

Chicago Employee Discrimination and Harassment Lawyer

At The Coffey Law Office a Chicago employee disability discrimination lawyer will take the time to listen to your concerns, ask for all the pertinent details and then we operate on an investigate, evaluate and negotiate basis. This means that The Coffey Law Office will only charge a one-time, non-refundable fee for assessing the merits of your case. The fee is based on your financial ability to pay and the extent of the work required determining if the case is meritorious. This does not necessarily mean that The Coffey Law Office will litigate your case, but it will definitely let you know your legal rights and whether or not you do indeed have grounds to proceed to litigation.

At The Coffey Law Firm we value our clients and deal with them in a no nonsense, straightforward manner. We tell them what they need to know to make informed decisions, not what they want to hear. Call us today for some straight talk about your case. We won’t keep you in the dark and promise you the pot of gold at the end of the rainbow, but we will let you know where you stand legally.