Article

Heart Disease and High Blood Pressure at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with heart disease, a past heart attack, heart failure, arrhythmia, or high blood pressure, including coverage based on cardiovascular and circulatory functions, why medication and devices do not erase coverage, returning after a heart attack or surgery, leave and modified schedules, follow-up appointments, safety fears and the direct threat standard, medical questions and confidentiality, FMLA leave, retaliation, and deadlines.

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How Heart Disease and High Blood Pressure 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 heart disease as a general term for many types of heart problems, including coronary artery disease, angina, heart attack, heart failure, and arrhythmia, and says high blood pressure usually has no symptoms. Under 29 CFR 1630.2(h)(1), an impairment includes a physiological disorder affecting the cardiovascular or circulatory system, and under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i)(1)(ii), major life activities include the operation of major bodily functions, which the regulation says include circulatory and cardiovascular functions. Coverage is still decided individually, not by diagnosis alone, but the definition of disability is meant to be construed broadly, and 29 CFR 1630.2(j)(1)(vii) says an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Medication and Devices Do Not Erase Coverage

Under 42 U.S.C. Section 12102(4)(E) and 29 CFR 1630.2(j)(1)(vi), whether an impairment substantially limits a major life activity is decided without regard to the helpful effects of mitigating measures, which 29 CFR 1630.2(j)(5) says include medication, medical supplies, equipment, and appliances. An employer therefore cannot deny that you have a disability just because blood pressure medication or other treatment keeps your condition under control. Under 29 CFR 1630.2(j)(4)(ii), the negative side effects of medication and the burdens of following a treatment regimen may also be considered. Under 29 CFR 1630.2(k), a person with a history of an impairment that substantially limited a major life activity, such as a past heart attack, has a record of a disability, and under 1630.2(l) a person the employer treats as impaired is also protected, although under 1630.2(o)(4) a person covered only on that regarded-as basis is not entitled to reasonable accommodation.

Returning After a Heart Attack or Heart Surgery

Under 42 U.S.C. Section 12111(9), reasonable accommodation may include job restructuring, part-time or modified work schedules, and reassignment to a vacant position. 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 obtaining medical treatment such as surgery, rehabilitation services, and recuperating from an illness or an episodic manifestation of a disability, and that a modified schedule may involve adjusting arrival or departure times, providing periodic breaks, or altering when certain functions are performed. The guidance also criticizes a court decision that allowed an employer to terminate a worker for lower productivity during a reduction in force after he missed months of work because of a heart attack and returned part time, stating that the court failed to consider that he needed leave and a modified schedule as reasonable accommodations and that those accommodations became meaningless when he was penalized for using them. An employer does not have to provide more paid leave than it gives similarly situated employees, and if more than one accommodation would work, the EEOC says your preference should be given primary consideration, but the employer may choose among effective options.

Follow-Up Appointments and Ongoing Treatment

Under 29 CFR 1630.2(k)(3), a person with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation needed because of the past disability, and the regulation's own example is an employee who needs leave or a schedule change to attend follow-up or monitoring appointments with a health care provider. The EEOC says an employer should respond expeditiously to a request for reasonable accommodation and act promptly to provide it, and that unnecessary delays can result in a violation of the ADA. You do not need to use special words to ask; tell your employer you need a change at work because of a medical condition, and keep copies of each request and each response.

Safety Fears and the Direct Threat Standard

Some employers pull workers with heart conditions from their jobs out of fear that they will have another cardiac event at work. Under 29 CFR 1630.2(r), a direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation, and that determination must be based on an individualized assessment of your present ability to safely perform the essential functions of the job, using a reasonable medical judgment that relies on the most current medical knowledge or the best available objective evidence. The factors include the duration of the risk, the nature and severity of the potential harm, the likelihood that the harm will occur, and its imminence. A general concern about heart disease, or a guess about what might happen years from now, is not the same as that individualized assessment.

Medical Questions and Confidentiality

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 its nature or severity unless the examination or inquiry is job-related and consistent with business necessity, although it may ask about your ability to perform job-related functions. When you request an accommodation and the need is not obvious, the EEOC says an employer may ask for reasonable documentation about the disability and the functional limitations that make the accommodation necessary. 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 and informing first aid and safety personnel when a disability might require emergency treatment.

FMLA Leave for Heart Conditions

Under the Family and Medical Leave Act, 29 CFR 825.113 defines a serious health condition to include inpatient care or continuing treatment by a health care provider, and 29 CFR 825.114 defines inpatient care as an overnight stay in a hospital, hospice, or residential medical care facility, including any related period of incapacity or subsequent treatment. Under 29 CFR 825.115, continuing treatment includes a period of incapacity of more than three consecutive, full calendar days that also involves treatment two or more times within 30 days, or treatment at least once that results in a continuing regimen of treatment, as well as chronic conditions that require periodic visits for treatment, continue over an extended period, 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, including for planned or unanticipated medical treatment and for recovery from treatment. 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, any medical clearance you provide, and any discipline, attendance points, demotion, 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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