Last updated: May 08, 2008
jennifer-jaff
Knowing your rights and options is critical for a chronic pain patient.
(JENNIFER JAFF)

Jennifer Jaff, Esq., is an insurance and disabilities attorney and is the founder and executive director of Advocacy for Patients with Chronic Illness.



Q: Should I mention my chronic pain condition in a job interview?

A: No. You have no legal obligation to mention it. If you do and you don't get the job, you're never going to know if that was part of the reason why. It's just not smart. Get the job first, and then if they fire you, you can say "This is why they fired me."


Q: Should I tell my boss once I'm working?

A: In my view, there are only two reasons to tell an employer that you have any chronic illness. One is if you are requesting leave under the Family and Medical Leave Act, and the other is if you are requesting accommodation under the Americans with Disabilities Act. Other than that, there's absolutely no reason to ever advise an employer. It's irrelevant. If you need accommodations, then you need to explain why you need accommodations. Or if you're requesting family or medical leave, you have to explain why you're entitled to it. But if you are able to perform the essential functions of your job without any accommodation, then you have no obligation to advise your employer, and I can't think of a reason why you would want to.

Q: How does the Americans with Disabilities Act (ADA) apply to people with chronic pain?

A: The ADA is a law that prohibits discrimination in employment on the basis of disability. It applies to employers with 15 or more employees. The ADA is intended to require employers to provide equal opportunities to employees with disabilities by requiring them to provide reasonable accommodations to such employees, and by prohibiting them from taking any adverse employment action against such employees on the basis of their disability. So the ADA allows patients with chronic pain to request reasonable accommodations that allow them to work despite their disability. For example, a patient with chronic pain from typing can request a voice-activated computer.

 

 

 

 

 

 

 

 

 

 

 

Q: What does it take to qualify under the ADA?

A: The ADA defines a disability as substantial impairment of a major life activity. Major life activities are the basics of what human beings do—seeing, hearing, walking, talking, going to the bathroom, eating, sleeping, etc. In order to be a qualified individual with a disability, you have to, number one, be disabled and, number two, be able to perform the essential functions of the job with or without accommodation. The essential functions of the job are generally listed on the formal job description. So if your job is data input and once in a while you have to cover the telephones, the data input would be your essential function, but covering the telephone is probably not since it's a once-in-a-while thing.


Q: How can I get a reasonable accommodation?

A: If something comes up, submit a written request for accommodations with a letter from your doctor explaining why the accommodations you are asking for are necessary because of your illness. Your employer then says, "Sure, we'll give you these accommodations," or "No, we won't give you these accommodations, but we'll give you some others," or "Let's sit down and talk." Or "No way, no how—we're not accommodating you."

In the first scenario, they grant your accommodation. In the next two, they deny your accommodation but they enter into an interactive process, so you probably have no complaint. If they just say no, then you have a complaint because they haven't engaged in the interactive process.


Q: How does the interactive process work?

A: I think a lot of people don't understand the process of getting accommodations. You can ask for a modified work schedule and your employer can come back and say, "No, I only have three people in your job, and I can't afford for one of them to be working less than full time, because that's a business necessity." It has nothing to do with your disability, and your employer is allowed to say no in a situation like that, if it's a legitimate, nondiscriminatory reason to deny your request. What they are not allowed to say is no accommodations under any circumstances. They have to engage in an interactive process.

Let's say a patient with fatigue from a pain condition needed to work fewer hours. The employer comes back and says, "I can't do that, but I can provide you with extra extended breaks during the day." You'd still have to put in the full eight hours, but you could put in the full eight hours over 10 hours and that might help your fatigue. It's supposed to be a dialogue. What employers can't do is just say no.



 
 

Q: Does the ADA protect me if I miss work because of pain?

A: A lot of people seem to be under the impression that because they are out sick due to a chronic illness, they can't be fired. I can't tell you how often I get phone calls saying, "I was out sick because I have a chronic illness. They can't fire me for that." That's wrong. If attendance in the workplace is an essential function of the job, then you have to be able to perform that essential function to be a qualified individual with a disability.

For example, if you are working in a telephone call center, obviously you have to be there in order to do your job. If you are not able to show up at work, then you can't perform the essential functions even with accommodations and you can be fired. However, if your job involves data input and you've got a fully secure computer at home, and you could perform the essential functions of your job if your employer would let you do it from home, then you are a qualified individual with a disability even if you can't make it to the workplace. But for the vast majority of jobs, attendance is an essential function.


Q: How do I go about getting time off for doctor visits and sick days?

A: The Family and Medical Leave Act (FMLA) allows patients with chronic pain to take leave without risking the loss of their job. The FMLA requires employers with 50 or more employees to grant eligible employees up to a total of 12 workweeks of unpaid leave during a 12-month period for medical reasons. An eligible employee is one who has worked for the employer for at least 12 months, or at least 1,250 hours during the previous 12 months. The FMLA does not use the same definition of disability as the ADA. It's a much less stringent standard. If you have a medical condition that's going to cause you to miss work, you're pretty much going to come under the FMLA. A lot of employers don't understand that and they try to deny family and medical leave. But in the vast majority of circumstances, if you ask for FMLA you're going to get it, and that's what's going to protect your job.

What a lot of people don't know about the FMLA is that leave can be intermittent. Let's say that you have rheumatoid arthritis (RA) and you need to go for Remicade treatments every six to eight weeks. You can take FMLA one day every six to eight weeks. It doesn't have to be 12 weeks in a row. It is unpaid leave. The employer can require that you use your paid leave—sick days and vacation time—first, but your employer can't just deny it.

You also need much less in the way of medical documentation than you do for reasonable accommodation under the ADA. For medical leave, you need a medical certification, which is really a very bare-bones doctor's note saying, "My patient has RA and will need to be out intermittently for medical treatment." That's enough. The same applies if you need to take leave to care for a family member. You need a certification from their doctor.


Q: In what circumstances can the ADA protect me from being fired?

A: There are two ways to violate the ADA. One is denying reasonable accommodation and the other is to discriminate against somebody by taking an adverse employment action against them because of their disability. Let's say your employer observes something related to your illness, and you haven't asked for a reasonable accommodation or disclosed that you're ill, but your employer fires you. You can file a complaint under the ADA and you have to prove that your employer knew or should have known that you were disabled and that that was the reason for the discharge.

 

 

 

 

 

 

 

 

 

Q: Should I discuss my condition with my supervisor in case I need to prove later that my employer knew about my disability?

A: If you feel that you're not performing the way your supervisor expects to you and you're worried about getting fired, what you ought to be doing is asking for a reasonable accommodation. Don't disclose it just for the sake of disclosing it.


Q: What about employers who don't fall under the ADA?

A: Smaller employers, in my experience, take on the reasonable accommodation obligation voluntarily. But, obviously, you cannot count on that. A disabled person is better off working for a large employer than a small employer for a lot of reasons. It's in part because the ADA applies, but also it's going to be easier to get reasonable accommodations. If you are the only secretary and you need to be out or you need accommodation, then it's really difficult because there is no one to cover for you. Whereas if you're one of 50 secretaries and you have to be out intermittently under the FMLA or you need reasonable accommodation in the form of getting up and walking around every once in a while because you need to stretch, then there's another secretary who can fill in for you. So if you're with a larger employer, the ADA and FMLA are going to apply, and also it's going to be much easier for the employer to accommodate you.


Q: What if I need to take narcotic medication on the job?

A: The use of narcotic pain medications is one of the biggest issues for chronic pain patients, and I don't think there's a clear answer. Frankly, I don't think that an employer has to accommodate you. Obviously if you are able to metabolize the medication and tolerate it and nobody knows that you are on drugs, then nobody knows. But generally the ADA does not apply to the side effects of medication, so they don't have to accommodate you because of side effects.


Q: How can I find out whether something I need would be considered reasonable accommodation?

A: The Job Accommodation Network is an extremely helpful tool. It's a database of accommodations that people have gotten, so you can actually search for the kinds of accommodations that you might be able to get. It's a website that is funded by the U.S. Department of Labor, but it is hosted out of West Virginia University. It's essentially a free online consulting service to help people figure out what they can and cannot ask for. I find it to be a very helpful website. There's also a whole website for the ADA, and DisabilityInfo.gov is also really good. Dealing with the federal government can be frustrating, but they have some great websites on these issues.