ADA: Do You Know Your Employee Rights?
Has anyone ever said to you, “Well, if you have to have Rheumatoid Arthritis, now is the best time to have it”? If you have heard this while experiencing a flare or shortly after your diagnosis, you may have felt like I did when this was said to me, a mixture of frustration and invalidation, with a small speck of hopefulness in the mix. Yet, over the course of years with this disease, I realize that this statement is true (although it’s not always advisable to say this to someone with RA, as his/her foremost thought may be that there is no good time to have the disease). It is true not only because there is now a wide array of drug treatment options, but also because people with disabilities have legal rights and protections that did not exist prior to the advent of the Americans with Disabilities Act of 1990 [ADA] and the ADA Amendments Act of 2008, which strengthened the original legislation. Of course, I would prefer not to need the drugs nor the legislation, but the reality is that I do have Rheumatoid Arthritis, and I have called on both the pharmacological and legal resources that I fortunately have at my disposal.
My hope is that you will never need the following information, as that would indicate that employers are treating their disabled employees fairly and legally. However, should you ever find yourself in a situation where that is not the case, knowing your rights is an essential first step in self-advocacy. Important note: This is not a comprehensive list of all the rights afforded by the ADA, but rather a summary of some of the important points of the ADA relating to employees with RA:
- The ADA protects individuals with disabilities that significantly limits or restricts a major life activity such as performing manual tasks, walking, or standing.
- It is against the law for an employer to ask an applicant whether s/he is disabled, or to inquire about the nature or severity of a disability. [In my experience I have found that the question, “Are you disabled?” is at times included on job applications, but upon investigation realized that these were optional questions and the answers were sent to the institution’s Equal Employment Opportunity office to guard against discrimination, and were not sent to the individuals hiring for the positions. It is your legal right to opt not to answer such questions.]
- Employers cannot require applicants to take a medical examination before hire.
- Individuals with disabilities must be qualified to perform the essential functions of the job, either with or without an accommodation.
- Essential functions are determined by examining factors such as 1) whether the position exists to perform that function, 2) the number of employees that are able to perform the function, among whom the function could be distributed, and 3) the level of skill or expertise required to perform the function. [To this end, I highly recommend that whenever you apply for a job you save a copy of the job posting. In this digital age this information is often removed from websites once positions are filled, and the information can be invaluable if you ever have to advocate for your rights.]
- Tasks that are not essential functions of the job can be reassigned to another employee if the employee with a disability is unable to perform them.
- The employee is responsible for informing the employer about the need for accommodations in order to perform essential job functions. [Note that employees are responsible for disclosure in order to receive accommodations, not applicants. Applicants with disabilities do not have to state the need for accommodations during the hiring process. Obviously applicants need to be honest about whether they can perform the essential job functions, they just don’t have to state during an interview that they require accommodations to perform those tasks.]
- The employer is responsible for providing the accommodations needed, provided they do not present the employer with undue hardships. This means that if the accommodation would require significant difficulty (not mere inconvenience) or expense on the part of the employer, they do not have to provide it. Note that an employer’s size, financial resources, and structure of operation are taken into account. For example, a large company or institution would have a tough time arguing that expense is an undue hardship in most circumstances.
- Employers are allowed to require documentation of the disability. However, as long as the documentation provided by the employee’s health provider is sufficient in terms of substantiating the disability and the need for an accommodation, an employer may not require an employee to go to a health care professional of the employer’s choosing. If the documentation is insufficient, the employer must explain to the employee why it is insufficient, and give him/her the opportunity to obtain sufficient documentation from the employee’s health care provider of choice.
Again, the ADA has far more reach than the information I’ve included, but those are some of the nuts and bolts of the ADA as it relates to employee rights. Should you ever question whether your rights are being violated, the U.S. Equal Employment Opportunity Commission and the United States Department of Justice Civil Rights Division have extensive materials online that should answer almost any question you may have. Finally, I would like to state my appreciation to all the individuals with disabilities who worked tirelessly in spite of their conditions to get the ADA and the ADA amendments passed, and those who have fought hard-won court cases when their rights were violated. They have made our society more equitable, and I am eternally grateful to them for the protections they created.
When was your last flare?