Sunday, October 05, 2008

National Disability Employment Month...USA Style...

Well, Fiddle e dee! Who KNEW that those of us diagnosed with Multiple Sclerosis not only got that ONE week in March (known as "National MS Awareness Week") to be recognized for *gettin' our gimp on*, BUT...we also qualify for the entire month of October. That is, IF you have MS and are gainfully employed. That's right...October IS National Disability Employment Month in the United States. Who KNEW? Well...ahem...I DID.

Unfortunately, the problem as I see it with dedicating an entire month to the employed disabled is this: MOST EMPLOYERS DON'T EVEN KNOW THE DESIGNATION EXISTS!!! Doh. So, I'm here to spread the limp PROUDLY to celebrate the one month of the year where I can hold some distinction in my job. As the designated office gimp (not to be confused with the designated office "chimp")...sigh.

I'm also here to provide a tiny bit of CHEESE education about employment and disabilities...cause that's just what I do. Condense all knowledge from Wikipedia (my online medical and legal advice guru) into one simplistic, no-more-than-six-letters-in-a-word HONOR of National Disability Employment Month. But first I must clearly state my disclaimer (because I just KNOW there are those of you out there that hang on my every word and construct your entire lives around the ramblings of a functional idiot such as myself):

**I am NOT an attorney nor do I represent any branch of the government capable of providing legal advice in the area of employment law and ADA law. I only PLAY an attorney on the Internet, much the same as I PLAY a doctor here. Please seek legal advice from someone with ATTORNEY behind their name on a business card and do NOT rely on CHEESE or information here to make important life decisions**

Mkay...that said, let's talk about disability law in the United States...because there IS one and it's very important to the employed disabled.

In 1990 (yes, it took THAT long to become recognized!), the AMERICANS WITH DISABILITIES ACT was signed into law. What this Act essentially did was, "prohibit discrimination against people with disabilities in employment, transportation, public accommodation, communications, and governmental activities. The ADA also establishes requirements for telecommunications relay services." The Act finally established a leveling of the playing field when it came to hiring, keeping, and firing a disabled employee...something that was prior done at random by employers and at their own judgment. (And I'm only going to focus on the "employment" aspect of this law, but it DOES cover everything from WHY there are disabled stalls in public bathrooms, too.)

So, you may be asking yourself, what's a "disability" and, just because I have Multiple Sclerosis do I QUALIFY for recognition under this Act?

The Federal government defines a *disability* as, "An individual is considered to have a "disability" if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment." The Act goes on to provide examples such as, "ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, nonchronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such an impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the "negative reactions" of customers or co-workers."

There you have it. Yes, Multiple Sclerosis fits under the category of "disability" because MS is considered a chronic neurological disorder with unknown course or duration, creating periods of temporary or permanent neurological dysfunction over the course of an individual's lifetime. Whether or not you are currently exhibiting symptoms of your MS in your employment does not matter...the fact that you HAVE or COULD again qualifies you for membership under ADA law. But don't take MY word for it! Here's another snippet from the ADA website about qualifying individuals: "A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation."

OK, now we get into some vague CHEESY interpretation of the Act that involve pre-employment issues. For instance, can an employer DEMAND or even INSIST you declare your disability prior to hiring or in a job interview? The answer is NO. They CAN ask, but you are not obligated to TELL. And they can ask as it pertains to other Federal laws (such as the Rehabilitation Act of 1973, which allows employers to "invite" individuals to disclose their disability for affirmative action purposes...and of course Veterans might also be eligible for OTHER services if they disclose on the job application.).

So, you're filling out that lengthy job application that you're most likely going to "boost" your work history on anyway, and you begin to wonder, "What if they make me take a physical before they will hire me OR they demand to see any of my 500 volume neurological records at my neuro's office? Crap! What now?!?"

The answer is simple. YOUR POTENTIAL NEW EMPLOYER CANNOT DEMAND YOU TAKE A PRE-EMPLOYMENT PHYSICAL BEFORE MAKING A JOB OFFER, NOR CAN THEY DEMAND MEDICAL RECORDS. Again, a quote directly from the ADA webpage themselves: "An employer may not ask or require a job applicant to take a medical examination before making a job offer. It cannot make any pre-employment inquiry about a disability or the nature or severity of a disability. An employer may, however, ask questions about the ability to perform specific job functions and may, with certain limitations, ask an individual with a disability to describe or demonstrate how s/he would perform these functions." But beware as you are NOT out of the woods just yet. Once you are OFFERED the job, an employer CAN "condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category."

So, you landed that job you've always dreamed of having (for me, that would be selling lumber at Home each his own!). And now you are employed, either knowing you have MS and will need special considerations or you get DIAGNOSED with MS while employed. What now? Say you've been functioning in your job, but MS (being the rotten thief it is!) has given you symptoms that are making your performance difficult and you are worried you're going to have to QUIT your job because you can't keep up?

This is where the ADA also steps in and says, "Whoa, wait a minute. Is this an employee who COULD continue to meet the requirements of their job IF a bit of tweaking to the requirements or environment of their job were to occur?" That *tweaking* is called "reasonable accommodation". And reasonable accommodation is defined as, "Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities."

What does THIS mean and when should I ask or expect my employer to provide "reasonable accommodation"? Out of the mouth of the ADA, "An employer is only required to accommodate a "known" disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one."

Reasonable accommodations can include ANYTHING from reduced work hours, special chairs, pencils, lights, built in break times, computer equipment, etc. It all depends on another term from ADA law called, "undue hardship", and whether or not your request for reasonable accommodation might create this on your employer: Undue Hardship.

ADA defines "undue hardship" under these guidelines: "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources."

But your employer isn't out of the woods just yet by claiming the "we can't afford it" route. The law goes on to say, "the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost which would constitute an undue hardship or providing the accommodation."

Now, say there's just a part of your job you don't LIKE to do AND you have MS and think this might be a plan to get out of doing the unpleasant. Can you ask to have the task removed from your workload and make Joe Slacker over there do it instead, sighting ADA law? Ah, NO! And not only does your employer NOT have to remove certain tasks of your job from you because of a disability, it can (and will) hold you just as accountable for COMPLETING the tasks of your job WITH REASONABLE ACCOMMODATION. Interpreted, this means you STILL have to be able to perform the basic functions of your job to stay employed with or without reasonable accommodations.

Can you be fired from your job if your employer says you pose a risk to the health and safety of you or your workplace because of your disability? Well, yes AND no. " The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat -- i.e., a significant risk of substantial harm -- to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a direct threat by reasonable accommodation." HOWEVER..."an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace."

What the above paragraph CAN be interpreted to say is this: An employer, does have the right to send you for medical evaluation to an outside medical party (usually slimy doctors PAID by your employer to render whatever decision the employer wishes to impose upon you...but I digress) for the purpose of obtaining "objective medical data" to support their claim YOU pose a risk to health and safety in the workplace. NO...they do NOT have to rely solely on your private physician's opinion and generally WON'T allow your doctor to have the final say. All I can say here is, BEWARE OF THE EMPLOYER WHO WANTS TO SEND YOU TO AN 'INDEPENDENT' NEUROLOGIST OR PHYSICIAN TO HAVE YOU EVALUATED. THEY CAN BY ALL RIGHTS DO SO AS A CONDITION OF CONTINUED EMPLOYMENT, BUT BY NO MEANS IS THIS PHYSICIAN TRULY INDEPENDENT...THEY ARE BEING PAID BY YOUR EMPLOYER!!

Just to show off here (because there is usually so LITTLE I know ANYTHING about), I think it is also important to recognize on September 25, 2008, the ADA was amended and the amendments will go into effect January 1, 2009. The majority of the amendments are just legalese clarifications for the EEOC (Equal Employment Opportunity Commission) to follow. But the one GLARING addition to the amendments which directly relates to Multiple Sclerosis is a new definition: clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. HELLO?!? Can anyone else scream MS here?!? The law finally recognizes MSers specifically without SAYING Multiple Sclerosis!

If you are interested in doing what should be deemed NECESSARY FACT CHECKING about any of the information I have plagiarized or quoted here, I offer you these sites for follow up:

So, in the spirit of National Disability Employment Month, I say to all of you employed MSers out there...LET'S GET OUR GIMP ON! And perhaps this month is also a great opportunity for some door opening with YOUR employer on what it is like to remain GAINFULLY employed AND have a disability? I know I will certainly be educating MY employer whenever possible...


Miss Chris said...

You are a bottomless cavern of knowledge! "The Cheese" is where I go for my info. :)

Spaz Attack said...

umm...I'm sure I heard your co-workers refer to you as the designated office chump!

Another good and information post to your minions Brainiac! Well Done.

Actually, I know from the hard knocks of life's experiences that you are right target about disability laws. Just wish I had someone with the encouragment, tenacity and tiger claws you have that would have helped to stay gainfully employed, because even though I took the low road to finally be awarded SSDI, I hate being pooor. And with someone like you guiding me when I wasn't able to think right, I believe I (accidentally hit the send button HERE!)
I believe I could have kept working. When my manager heard I had MS I became "damaged Goods" to him and I firmly believe he SET me up so that I would say I QUIT, or he could fire me. I ended up saying I quit. My own advise to ALL out there is to never say or write the words "I Quit." while you might think it the "noble" thing to do because with MS you are now "damaged good" its better to make your employer PROVE it by LAW!!! As for myself, I believe my own psyche would be better if I were still able to work, even part-time. At this point though my good days are unreliable (as is my mind).
Incidentally, to qualify for SSDI you have to prove you can't work full-time...or a 40 hour work week considering of five 8-hour days. And when filling out the application emphasize what you cannot do on your WORST days, because those are the days that hold the most meaning.

Lanette said...

You and have all the info! Thanks so much! :)

TEAM H.O.P.E. said...

Are you sure you have the month correct? I'm pretty sure the SGK folks own October.

Steve said...

For the record, disability determinations for Social Security have nothing to do with the number of hours you work. The determination is based upon whether the work you are doing or are deemed capable of doing is considered Substantial Gainful Activity (SGA). SGA is essentially a dollar amount that goes up each year. If you work 1 day per month, but earn $1500 that day, you would (depending of course upon other factors as well) likely not be considered disabled according to Social Security rules.

Of course, they take into consideration things like subsidies, impairment related work expenses and the like.

Also, as an interesting bit of trivia, the Washington State Direction of the Disability Determination Services (the agency in Washington State that makes disability decisions for Social Security) is a quadriplegic.

Anyway, great post!

Steve said...

In the interest of not overstating, I should clarify that hours worked can be relevant. I really only wanted to point out that the determination isn't based upon hours worked; rather, it's based upon amount earned or amount capable of being earned.

Webster said...

And here I thought October was all about falling leaves and ghosts and goblins and pumpkins and corn mazes and drinking German beers. Silly me. Thanks for a well written synopsis.

Jen said...

Brain Cheese---

I wish the ADA was all I needed to stay employed out in the work force. I need the Family Medical Leave Act tweeked a bit. I have had trouble staying employed, even part-time and at low-stress and low-wage library jobs, for the past 5 years. I envy your resilience and tenacity. I'm trying to tweek my own at-home freelance writing (a couple of irons in the fire right now), but I miss being out in the work force. At the same time, I've tried twice to sustain outside employment and have failed. MS sucks in that it prevents people from being out in the work force, and so then they are home and not overdoing it, but they WANT to get back out there! But volunteering it is for now, and making money must be done from home, because I think the emotional carnage from a 3rd failed attempt would be way too much...

I'm dreary today--- just need to vent! Thanks for the great post and a little chuckle....


pUNKrOCKfairy said...

Dude. Thanks for the info and the hella good timing. I'm still on the fence at work in that, my co-workers know I have MS and I'm not keeping it a secret, but I've not sat down to have "the talk" with my boss. I'm thinking she probably knows ("coz everyone else does) but won't bring it up until I do. She is unpredictable, at least, in her decision making and capacity for compassion. So I can never make up mind about confessing in an attempt to prepare her for my inevitable health disasters, or I should wait until I absolutely MUST tell her when I can't come to work for some reason. Maybe you have some advice on this as well?

Anonymous said...

I would NOT sit down and have a talk with your employer. I would write a letter (or e-mail) and keep a copy of the letter. Be extremely careful on your choice of words - even to say that you have MS could give the employer ammunition to fire you, because it is THEIR choice to say if you are a threat to their business or not. There is a reason why politicians keep denying their wronghead deeds and that is because this is a legal thing to have an admission. But, I'm not a lawyer and I don't have MS, I've only been fired and now I'm BARRED from working, because I'm so stupid that I wrongly believed the governmental advertisement "they can't fire you". YES, THEY CAN FIRE YOU AND THEY WILL THAT IF YOU LET THEM!
The game is over as soon as they insist that you go to a "doctor". In my case they said that they would pay for everything. In the end they paid NOTHING that they required and the insurance company paid NOTHING. Everything that I worked for, for 40 years has been taken away, save my home, which will be taken to get a SSDI "benefit" (not worth it).
In the meanwhile, I would try to make a life without employment (medical history - written down and you need to have a copy, savings, self-employment, etc.), because, again the government is woofully negligent in helping a person "with a disability".
Bless you Brain Cheese, for the post. I do wish that I had a little advice, before my life (such as it was) was purposely destroyed.
Now, can you post something on what to do NOW? In my position, I'm ineligible for any type of "welfare" and I'm UNABLE to do telework.

Fighting MS For A Cure said...

I have lost 3 jobs because of my MS and not because i failed to do my job or missed time ... But bc of lack of understanding of the illness! But MI has 'At will employment' so they never have to give you a reason! Even unemployment was told 'i did nothing wrong' REALLY! But thats all they have to say 'at will' ... Unless fired for cause which has not occured.

So how can i fight it when its the law?! Plus bc of my prior experiences i did not disclose my illness to last employer... And they found out the day i went for treatment bc i needed a dr note. Well my dr is an MS Specialist!!! Duh. So ironically that day as i left dr i was called n told i wouldnt need to return. NO REASON! So i spoke w lawyer n found out that bc i didnt disclose it i could do nothing!

So stuck between Law and Law! So what can i do to not be 'at willed' again?!