By Jack Tuckner, Esq.
Here’s all you need to know about your disability – whether temporary, or permanent – and your job, and work, and your employment, what are your rights?
To misappropriate Dr. Martin Luther King’s prior statement, “The arc of the disability universe is long, but it bends towards justice.” Over the last 20-some odd years, since the Americans Disabilities Act was enacted in 1991, the definition of disability has become way more expansive under federal law. And then every analogue state or city law that has been legislated and enacted since then, tends to define disability more progressively. It’s no longer necessary that you have a certain established, bona fide disability that affects a major life activity in some negative way. It can be now essentially anything that’s diagnosed by a healthcare provider that is some kind of impairment, or condition, or established challenge to some part of your body, that is an ailment of some sort. And even these days, pregnancy, pregnancy-related challenges are also covered under the various statutes that now define disability way more broadly.
So, your employer must engage in an interactive process with you, a cooperative dialogue at the very least, to determine the balance between your needs – the needs of the one, versus the needs of the many – your company. Unless it’s an undue hardship on the company to work with you, to give you a week, a month, three months, four months off to recover, or, to give you a different schedule, or to help you orthopedically in some way, so that you can perform the essential functions of your job even though it is “special treatment,” they must do that. They must do that. Now there are certain limitations, that your employer must have 15 employees under federal law to be covered. Most state laws require far less employees, such as in New York where just 4 are required for coverage under the anti-discrimination statutes.
So whatever the challenge you’re facing, whether it is something related to pregnancy, or you have influenza, or a more serious issue and you need your employer to work with you, be flexible, compassionate, reasonably accommodate you – make sure that you’re documenting all of this, putting it in writing, so you’ll have a paper trail, because your employer can’t just be dismissive and cavalier and say, “Sorry, it’s too much of a pain in the butt for us, we’re not dealing with you anymore.” That would be illegal disability discrimination; now totally separate issue from whether you get paid for the time off, totally separate. Is there short-term disability insurance involved, is there a state or city law that requires a certain amount of earned, paid sick time that you might have in the bank, can you use your own accrued vacation time or other paid time off, substitute it in and get paid – that’s also sort of a separate issue because maybe you don’t have time, and maybe you won’t be paid by your job if you’re out sick for certain period of time.
But that doesn’t mean they can fire you. That’s the distinction. You may not get paid but you can’t be fired for your disability unless your employer can demonstrate that your challenges are an undue hardship on the business, and that they therefore have gone well above and beyond what they need to do and sorry, goodbye, you’re fired.
I hope that clarifies the disability discrimination statutes and your employment. If you have particular questions about your workplace challenges, or a loved ones’ workplace issues, feel free to call me, I’m Jack Tuckner, and we will consult, in total confidence, of course, to see about empowering you through your workplace challenges.
And remember, whatever else you do, don’t quit, don’t quit your job, and then contact a lawyer. Find out first what your rights are before you give up on the job, or on yourself.