Article

Arthritis at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with rheumatoid arthritis, osteoarthritis, and other types of arthritis, including coverage based on walking, standing, lifting, manual tasks, and immune and musculoskeletal functions, flares and morning stiffness, why treatment does not erase coverage, equipment, seating, and job restructuring accommodations, schedules and leave, documentation and medical questions, FMLA intermittent leave, age-related comments, retaliation, and deadlines.

8 min read

How Arthritis Can Qualify as a Disability

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees for 20 or more weeks in the current or preceding calendar year and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. MedlinePlus says any disorder that affects the joints is often called arthritis, that most types can cause joint pain and inflammation, and that common types include osteoarthritis, rheumatoid arthritis and other autoimmune arthritis, psoriatic arthritis, gout, and ankylosing spondylitis. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities include performing manual tasks, walking, standing, sitting, reaching, lifting, bending, sleeping, and working, as well as the operation of major bodily functions, and the regulation expressly lists functions of the immune system and musculoskeletal functions. Coverage is still decided individually rather than by diagnosis alone, but the ADA's definition of disability is meant to be construed broadly, and a person with a record of such an impairment or who is regarded as having one can also be protected under 29 CFR 1630.2(k) and (l).

Flares, Morning Stiffness, and Treatment

MedlinePlus says rheumatoid arthritis symptoms may come and go, that joint pain or stiffness is usually worse in the morning or after inactivity, and that fatigue can be a symptom; it says osteoarthritis stiffness is often worst for the first 30 minutes after getting up from resting and that the condition usually gets worse slowly. Under 29 CFR 1630.2(j)(1)(vii), an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active, so an employer cannot deny coverage simply because you were having a good week. Under 42 U.S.C. Section 12102(4)(E) and 29 CFR 1630.2(j)(1)(vi) and (j)(5), substantial limitation is judged without regard to the helpful effects of mitigating measures such as medication, and 1630.2(j)(4)(ii) says the negative side effects of medication or the burdens of following a treatment regimen may be considered. A person covered only because the employer regards them as impaired is not entitled to reasonable accommodation under 1630.2(o)(4).

Equipment, Seating, and Job Restructuring

Under 42 U.S.C. Section 12111(9), reasonable accommodation may include making facilities readily accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, and acquiring or modifying equipment or devices. In one EEOC example, a cashier who easily became fatigued because of lupus asked for a stool, and the EEOC called it a common-sense solution because the job could be done sitting down. Depending on which joints are affected, similar requests might include a chair or sit-stand option, ergonomic keyboards or tools with larger grips, a closer parking space or workstation, rotating away from tasks with repetitive motion, or moving occasional lifting or other marginal duties to a coworker, as long as the change does not cause undue hardship, which 29 CFR 1630.2(p) defines as significant difficulty or expense. MedlinePlus lists avoiding activities with repetitive motions and avoiding joint injuries among ways people can help manage rheumatoid arthritis. If more than one accommodation would work, the EEOC says your preference should be given primary consideration, but the employer has the ultimate discretion to choose among effective options, and it is not required to eliminate an essential function of the job.

Schedules, Leave, and Working From Home

If mornings are hardest, a later start time or modified schedule may be a reasonable accommodation under Section 12111(9). The EEOC's reasonable accommodation guidance says permitting accrued paid leave or unpaid leave is a form of reasonable accommodation when needed because of a disability, including for physical therapy and for recuperating from an episodic manifestation of the disability, and that granting time off or an adjusted schedule may involve modifying leave or attendance procedures. MedlinePlus says rheumatoid arthritis treatment can include medicine, lifestyle changes, and surgery, and leave to recover from joint surgery may be part of the same analysis. On working from home, the EEOC says an employer must modify its policy on where work is performed if that change is needed as a reasonable accommodation, but only if it would be effective and would not cause undue hardship; whether it is effective depends on whether the essential functions of the job can be performed at home. The EEOC also says an employer should act promptly on a request and that unnecessary delays can violate the ADA.

Documentation and Medical Questions

MedlinePlus says there is no single test for rheumatoid arthritis and no specific test for osteoarthritis, and that providers rely on medical history, a physical exam, and blood tests or imaging to rule out other conditions. When you request an accommodation and the need is not obvious, an employer may ask for reasonable documentation about the disability and the functional limitations that make the accommodation necessary, so a note from your provider describing which tasks are affected, such as gripping, prolonged standing, or lifting, is usually more useful than a diagnosis alone. Under 42 U.S.C. Section 12112(d)(4)(A), an employer may not require a medical examination or ask a current employee whether they have a disability or about the nature or severity of a disability unless the examination or inquiry is job-related and consistent with business necessity. Under Section 12112(d)(3) and (4), medical information the employer obtains must be kept on separate forms, in separate medical files, and treated as confidential, with limited exceptions such as informing supervisors about necessary work restrictions and accommodations.

FMLA Intermittent Leave for Arthritis

Under the Family and Medical Leave Act, 29 CFR 825.113 defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Under 29 CFR 825.115(c), continuing treatment includes a chronic condition that requires periodic visits for treatment at least twice a year, continues over an extended period including recurring episodes of a single underlying condition, and may cause episodic rather than continuing incapacity. Under 29 CFR 825.202, FMLA leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned or unanticipated medical treatment or for recovery from treatment or from the condition. Under 29 CFR 825.110, an eligible employee has worked for the employer for at least 12 months, has at least 1,250 hours of service in the 12 months before leave starts, and works at a location where the employer has at least 50 employees within 75 miles.

Age-Related Comments, Retaliation, and Deadlines

MedlinePlus says the risk of many types of arthritis increases with age. If a manager links your joint problems to your age, for example by suggesting you are too old for the job or should retire, the Age Discrimination in Employment Act may also apply: the EEOC says it forbids age discrimination against people who are age 40 or older. Under 42 U.S.C. Section 12203, an employer may not retaliate against you for opposing disability discrimination or taking part in an ADA charge or investigation, or coerce, intimidate, threaten, or interfere with you for exercising ADA rights. Keep a written record of each accommodation or leave request, every response, and any attendance points, discipline, schedule cut, or termination that follows. A charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination; federal employees generally must contact an agency EEO counselor within 45 days.

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