The anxiety in Josie’s voice was palpable over the phone. “I have to go back to work because my short term disability ends next week. But I am still so tired! I look alright, but inside I feel horrible. Chemotherapy was brutal–I felt like I’d been hit with a baseball bat when they took all my insides out and then put them back wrong.”
“I feel like sleeping all the time. We went on vacation and I went along just to humor my family–but I ended up sleeping in the camper the whole time. I have to force myself to make meals for the kids. That’s about all I can manage. I don’t think I have the stamina for my nine to five job–even though I love it.”
“How will I be able to go to my doctor’s appointments? My family medical leave is all used up, and so is all my vacation time and sick leave.”
Mark told me a similar story. He works in tech and although his boss told him they would be “flexible” and “not to worry about it” when he shared that he had chronic kidney disease and was awaiting a kidney transplant–he, too, had used up all of his sick leave and most of his vacation time. “What if I get sick? I feel like I can’t even get a cold!” he told me in a panicked voice.
Josie is bright and motivated and so is Mark.
But like so many people, neither had a clue that they were entitled to accommodation at work under the Americans with Disabilities Act (ADA) or that the ADA law even applied to them.
(Please note: all client names have been changed to protect their privacy).
Do You Have a Disability?
An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities. Disabilities can range from migraines and chronic back pain to Type 1 diabetes, kidney disease and cancer. In some cases, people with disabilities are entitled to accommodation in the workplace.
Do You qualify For Accommodation?
There are three conditions that you must fulfill to qualify for accommodations:
1. Your company: you must work for a company that employs more than 15 people;
2. You must be a “qualified individual”: that means you must be able to perform your essential job functions with accommodations. Essential functions are the job duties that are fundamental to the position–the reason the job exists.
3. A medical condition: You have the right to request an accommodation when there is a medical condition, either temporary or chronic, that requires it. And you have to be able to document your medical condition.
Here is Mark again: “Do I qualify for Americans with Disabilities Act (ADA) accommodations? “I’m at chronic kidney disease Stage 4 but not yet end stage. It would be great if I could qualify for ADA accommodations because I could request unpaid leave to go to doctor’s appointments as I get evaluated for transplant. Can I do this? Do I need a physician to provide some sort of documentation for me, and if so, what should it say?”
Answer: Yes you qualify for ADA accommodations; yes, you can request unpaid medical leave; and yes, you may need to provide documentation.
“Under the ADA, you are entitled to accommodations–you are considered a ‘protected class’ of persons,” Craig Pressley, a social worker at the Beth Israel Deaconess Medical Center, told Mark. “And if your employer asks for documentation, you have to be able to supply it.”
According to Boston disability attorney Denise Chicoine, “It is up to YOU, however, to come forward and identify the issue and the change that is requested. For example: you can’t assume that your supervisor will know you need to come in late just because you have told her that you are experiencing migraines.”
“Of course,” she continues, “you should know that you may be giving up some privacy, since your physician may have to communicate directly with your employer, and your company may require that you consult with another doctor to confirm the diagnosis” (see ADA Fact Sheet at the end of this blog).
Accommodations–what are they?
Under the ADA, you have the right to request of your employer a list of REASONABLE accommodations. A “reasonable accommodation” is a change that accommodates employees with disabilities so they can do their job without causing the employer “undue hardship” (too much difficulty or expense).
What reasonable means in practice depends to a large extent on the nature of your job.
The following is a short list of what are considered “reasonable accommodations” (a more complete list is at the end of this blog and is available online. See the “Resource” section referenced below):
–A change to the employee’s position or specific tasks
–Allowing a flexible work schedule
–Allowing an employee to work from home
–Reassignment to a new department
–Improving accessibility in a work area
Mark came up with a clear plan and description of his job responsibilities: how he would work from home, what his tasks would be and how they would be evaluated.
In coming up with the accommodations he would need, he had to think about:
1. What parts of his job would he be able to do with reasonable accommodations? If he had to attend a doctor’s appointment, could his employer provide the flexibility for him to work additional hours so that he could make up the time?
2. What other technologies could give him room to do his essential activities: could he use voice conferencing, email and shared documents? Would that be workable on days when his symptoms were bad and he needed to work from home or on a reduced schedule?
Mark is just requesting reasonable accommodations as allowed by law. He must negotiate this agreement with his employer, who may counter that his request would present an undue hardship for the company.
When to Call a Lawyer
“Should I consult a disability attorney?” Mark wanted to know.
That, according to disability attorney Denise Chicoine,“depends on your situation. Sometimes a lawyer can add value right at the outset if say, you have a bad relationship with your supervisor.” But if you have excellent skills and a good relationship with your boss or manager, you might not need one at all; you can potentially test out the first round of negotiations yourself.
“If your company denies a well-supported request,” she says–”then you can consider consulting a lawyer.”
Disclaimer: I, Dr. Brita Lundberg, am not a disability lawyer. Please do not consider any of the suggestions I offer here to be any sort of legal advice. I just hear these concerns a lot among the patients I advocate for. Since many seem unfamiliar with the ADA, I thought others might benefit from this knowledge as well. Having accommodations in place can have a significant impact on your ability to recover from or live with a serious illness.
How significant? I can say that after launching the accommodation request process, Mark’s mood was transformed. His voice sounded relaxed and confident, where before I could hear how overwhelmed and stressed he felt. Even his mother noticed a difference! So although there had been no change in his physical health–he was still suffering from advanced chronic kidney disease and was still in need of a transplant–he would be going into that process a bit more relaxed because he now had accommodations in place at work.
WRITING YOUR LETTER REQUESTING ACCOMMODATIONS
A template letter that can be used to request job accommodations can be found at askjan.org.This website lets you know your legal rights; gives you free counsel; and a list of possible accommodations that you might request. A complete list of resources about accommodations is attached at the bottom of this blog.
Examples of things to say in your letter: “As I’m learning more about the process of the medical condition I have, it is the advice of my medical team that I seek the following accommodations.”
In your letter, you want to explain that your situation is unique and that you are making a reasonable request. According to social worker Craig Pressley, “you should feel very confident about that: you want your work to be in line with your ability to carry it out and you want to be transparent with your employer. This is what I bring; this is what I want.” It is much more helpful to your employer when you communicate openly. Tell them what tasks you need accommodations for. You can explain, “I want to be accountable for my time and a good steward of the freedom and flexibility you’re giving me; I want to be honest and accountable and professional; I want to maintain a good relationship with you.”
It is completely appropriate to formally request accommodations, Pressley emphasized. Explain that reasonable accommodations will help you be more successful. When you have doctor’s appointments, you can work non-traditional hours or take your medical appointments as unpaid medical leave. This may require shifting your time but you will still be productive. And maybe you can take on projects that are more time-flexible.
Do your best to communicate that what you are asking is reasonable and workable. Your employer can’t fire you because you have a disability–but he/she CAN terminate you if you aren’t hitting deadlines or doing unsatisfactory work. A major reason to establish accommodations is so that you will be successful in your work. Ask for what you need. How to accommodate your request is up to your company. State that these are reasonable accommodations that you want; be very professional, be very clear, and ask politely.
Above all, Pressley said: “Remember to be kind to yourself; remember that part of the confusion and anxiety around this process stems from the fact that many companies are not very familiar with it.”
Resources To Help You Figure Out Your ADA Rights:
Everyone experiences their symptoms in a unique way. Please use the websites listed below to gather ideas for accommodations–think broadly and use them as good sources for the range of accommodations that might be helpful for you.
Cancer and Careers – Use their free publications to help you. The general ideas in these publications can be helpful. They even have a guide for employers…looking at that may be a way that you can help guide them and ask for what you want.
Cancer Legal Resource Center/Disability Rights Center
Sample letter
Massachusetts Disability / Employment Information:
Massachusetts Disability – Rights and Resources:
Resources through the Massachusetts for assistance
Office of Disability Employment Policy (ODEP)
(866) 633-7365
This is the branch of the US Department of Labor that provides oversight of the ADA policy. You can always call them with questions. They are there to help you!
ADA Fact Sheet: An Overview of the Protections Offered by the Americans with Disabilities Act–Denise Chicoine, J.D.
The Americans with Disabilities Act (ADA) became law in 1990. The ADA is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else.
The ADA:
–Helps people with disabilities access the same employment opportunities and benefits available to people without disabilities.
–Applies to employers with 15 or more employees.
–Requires employers to provide reasonable accommodations to qualified applicants or employees.
–Defines disability, establishes guidelines for the reasonable accommodation process, and addresses medical examinations and inquiries.
–Regulated and enforced by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC may impose penalties on non-complying employers.
What is a “reasonable accommodation?”
A “reasonable accommodation” is a change that accommodates employees with disabilities so they can do the job without causing the employer “undue hardship” (too much difficulty or expense). Examples include but are not limited to:
–A change to the employee’s position or specific tasks
–Allowing a flexible work schedule
–Allowing an employee to work from home
–Reassignment to a new department
–Improving accessibility in a work area
–Providing or adjust a product, equipment, or software
–Providing an aid or a service to increase access
–Allowing the use of service animals
Accommodations are considered “reasonable” if they do not create an undue hardship or a direct threat.
What are “essential job functions?”
In order to be protected under the ADA, an applicant or employee must be able to perform essential job functions. Essential functions are job duties that are fundamental to the position; they are the reason the job exists. Some of the factors for determining essential functions of a job include:
–Whether the position exists specifically to perform these essential functions.
–The number of other employees who are available to perform the same job duties.
–The expertise or skills required to perform the essential functions.
What is a “qualified individual”?
This means that means you must be able to perform your essential job functions with accommodations such as those listed above. Essential functions are the job duties that are fundamental to the position–the reason the job exists.
**Disclaimer: All patient names and identifying details have been changed to protect client confidentiality. The suggestions given here are not intended as a substitute for the medical advice of your physician or legal advice of your attorney.
Photo credit: photo by Nik Macmillan, from Unsplash.com
