Article

Fibromyalgia at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with fibromyalgia, including coverage based on sleeping, standing, concentrating, and musculoskeletal and neurological functions, flares that come and go, why treatment does not erase coverage, seating, pacing, and schedule accommodations, leave and working from home, documentation for a condition without a single test, FMLA intermittent leave, retaliation, and deadlines.

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How Fibromyalgia 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 describes fibromyalgia as a chronic condition that causes pain all over the body, fatigue, and other symptoms, with main symptoms of long-lasting pain and stiffness, fatigue, and trouble sleeping, and other symptoms that may include problems with thinking, memory, and concentration. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities include sleeping, standing, sitting, walking, lifting, concentrating, thinking, and working, as well as the operation of major bodily functions, and the regulation expressly lists musculoskeletal and neurological 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, Good Days, and Treatment

If your symptoms are worse at some times than others, that does not defeat coverage. 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 had 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. MedlinePlus says there is no cure and that treatment focuses on relieving symptoms with a combination of medicines, lifestyle changes, and other therapies. A person covered only because the employer regards them as impaired is not entitled to reasonable accommodation under 1630.2(o)(4).

Seating, Pacing, Schedules, and Other Accommodations

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 your symptoms, similar requests might include a chair or sit-stand option, ergonomic equipment, rest breaks to pace physical tasks, a later start time if sleep problems make mornings hardest, or written instructions if concentration is affected, as long as the change does not cause undue hardship, which 29 CFR 1630.2(p) defines as significant difficulty or expense. MedlinePlus also lists sensitivity to light, noise, odors, and temperature among possible symptoms, which may support workspace adjustments. 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.

Leave, Attendance, and Working From Home

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. It also says granting time off or an adjusted schedule may involve modifying leave or attendance procedures. 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 for a Condition Without a Single Test

MedlinePlus says fibromyalgia can be hard to diagnose, that there is no specific test for it, and that providers diagnose it by taking a medical history, doing a physical exam, and ruling out other causes. That can lead managers to doubt symptoms they cannot see. 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 how your symptoms affect specific work tasks 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 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 Fibromyalgia

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.

Retaliation and Deadlines

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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