Going Back To Work With Disabilities

Bad news: the doctor diagnoses cancer, a brain tumor, diabetes or depression. Or tells you you're in for major back or knee surgery. You can't work for two months. And when you do go back, you'll need different hours and breaks for medication or treatment.

You've done a good job when you're healthy, but with dark health clouds looming, do you still get to keep your job? And does the company have to break its normal workplace rules to allow people to go to the doctor, take a rest break at an irregular time or take more sick leave than the regular policy allows?

Under the Americans with Disabilities Act, people with medical problems who are worse off than the average person in the ability to walk, see, hear or engage in other "major life activities" are entitled to reasonable accommodations at work, unless the change poses what's called an "undue hardship" on the employer.

Still Subject to Interpretation

A recent major study shows that employers win 95 percent of the cases decided under the ADA, usually on mind-boggling technical arguments about what should be considered a "disability."

Each case has foundered on what it means to qualify for the job - and for coverage under the Act.

In a statute of weasel words, "qualified" is relatively easy - it means you can do what's essential to the job. You might do the job a little differently if you're blind or deaf, but with a few adjustments, you can still get it done.

But what does it mean to be "substantially limited in a major life activity" - a key element of ADA coverage? A San Francisco court recently ruled that sex and the ability to interact with others could be major life activities, in a case involving a man with an anxiety disorder who became impotent and shied away from others.

Two years ago, the U.S. Supreme Court declared the ability to reproduce a major life activity. Meanwhile, courts are still split on whether sex itself, thinking or being able to concentrate are major life activities.

Federal appeals court have rejected the following as "major life activities":

• Golf
• Mall shopping
• Driving
• Working on cars
• Housework
• Moving furniture
• Yard work
• Painting
• Plastering
• Digging in the garden
• Shoveling snow

Setting Limits

Sometimes, an employer can show that it didn't know about the disability when it made the employment decision.

But often, courts conclude that the problem was too short-lived or not bad enough to really be a disability.

In most cases, you don't need to wait for years of litigation to clarify whether you should get a break in returning to work with your particular medical problem.

You can follow these simple rules:

• Focus on your ability, not disability.
• Ask your employer to bend the work rules just a little if you have a medical condition and need some adjustment.
• Remind your employer it's costly to hire someone new. And it often costs nothing to do something a little differently.
• Talk out accommodation problems instead of making them bigger than they need to be. The Geo Metro, rather than the Cadillac, of accommodations will often do.
• Your employer's liability for damages is tied to whether it engages in a good faith "interactive process" of trying to find an accommodation. So keep trying.
• Remember that juries, who have the power to award punitive and emotional distress damages under the ADA, just hate it when an employer hits someone who is already down with a serious medical problem.

Related Web Links:

Job Accommodation Network
Equal Employment Opportunity Commission

Discrimination Message Board for more help