Article

Kidney Disease and Dialysis at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with chronic kidney disease, kidney failure, dialysis, or a kidney transplant, including coverage based on kidney function, treatment burdens and medication, schedule changes and leave for dialysis, medical questions and confidentiality, FMLA intermittent leave, retaliation, and deadlines.

8 min read

How Kidney Disease 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 explains that chronic kidney disease means the kidneys are damaged and cannot filter blood as they should, that diabetes and high blood pressure are the most common causes, and that kidney failure requires dialysis or a kidney transplant. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities include the operation of major bodily functions, and the regulation lists genitourinary and bladder functions and says the operation of a major bodily function includes the operation of an individual organ within a body system. Coverage is still decided individually, but the ADA's 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.

Dialysis, Medication, and Transplants Do Not Erase Coverage

Under 42 U.S.C. Section 12102(4)(E) and 29 CFR 1630.2(j)(1)(vi) and (j)(5), whether an impairment substantially limits a major life activity is decided without regard to the helpful effects of mitigating measures such as medication and medical supplies, equipment, or appliances, and that list is not exhaustive. The regulation at 29 CFR 1630.2(j)(4)(ii) adds that the non-ameliorative effects of mitigating measures, such as negative side effects of medication or burdens associated with following a particular treatment regimen, may be considered. So an employer cannot rely on the fact that dialysis or post-transplant medication keeps you working to deny that you have a disability. Under 29 CFR 1630.2(k), a person with a record of an impairment that substantially limited a major life activity is also protected, and under 1630.2(l) so is a person the employer treats as impaired, although under 1630.2(o)(4) a person covered only on that basis is not entitled to reasonable accommodation.

Schedule Changes Around Dialysis Treatments

MedlinePlus says people on hemodialysis usually go to a special clinic for treatments several times a week, while peritoneal dialysis uses the lining of the abdomen to filter the blood. Under 42 U.S.C. Section 12111(9), reasonable accommodation may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, and acquiring or modifying equipment. The EEOC's reasonable accommodation guidance says a modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain functions are performed, using accrued paid leave, or providing additional unpaid leave, and that an employer must provide a modified or part-time schedule when required as a reasonable accommodation absent undue hardship, even if it does not offer such schedules to other employees. For some jobs the time an essential function is performed may be critical, which can affect whether a particular schedule change is possible. If more than one accommodation would work, the employer may choose among effective options, and undue hardship means significant difficulty or expense.

Leave for Dialysis and Other Treatment

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, and it lists obtaining medical treatment, expressly including dialysis, and recuperating from an illness or an episodic manifestation of a disability among the reasons. An employer does not have to provide more paid leave than it gives similarly situated employees, but it should let you use accrued paid leave first and then provide unpaid leave. The EEOC also says an employer should act promptly on a request, and unnecessary delays can violate the ADA. You do not need to use special words to ask; keep copies of each request and each response.

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, 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.

FMLA Leave for Kidney Disease and Dialysis

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. 29 CFR 825.115(e)(2) specifically lists kidney disease requiring dialysis as an example of a condition that calls for multiple treatments because it would likely cause more than three consecutive full days of incapacity without treatment, and 825.115(c) covers chronic conditions that require periodic visits for treatment 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. 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 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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