Article

Lupus at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with systemic lupus erythematosus, cutaneous lupus, and other types of lupus, including coverage based on immune system functions, flares that come and go, why treatment does not erase coverage, seating, sun exposure, and temperature accommodations, schedules, leave, and working from home, documentation for a condition without a single test, FMLA intermittent leave, retaliation, and deadlines.

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How Lupus 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 lupus as a chronic autoimmune disease in which the immune system attacks healthy cells and tissues by mistake, causing inflammation that can damage the joints, skin, kidneys, heart, lungs, and brain; systemic lupus erythematosus is the most common type, and cutaneous lupus affects the skin. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities include performing manual tasks, walking, standing, sleeping, concentrating, thinking, and working, as well as the operation of major bodily functions, and the regulation expressly lists functions of the immune system. 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, Remission, and Treatment

MedlinePlus says lupus symptoms differ from person to person and may come and go, that a period of symptoms is called a flare, that flares can range from mild to severe, and that new symptoms may appear at any time; common symptoms include painful and swollen joints with morning stiffness, fatigue, fever, sensitivity to the sun, headache and dizziness, and confusion and memory problems. 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 look well between flares. MedlinePlus says there is no cure but medicines and lifestyle changes can help control lupus, and that treatment may include drugs that suppress the activity of the immune system. 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).

Fatigue, Sun Exposure, and Temperature Accommodations

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 or devices. The EEOC's own example involves lupus: 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. MedlinePlus says cutaneous lupus usually causes a rash or sores after the skin is exposed to sunlight, and that some people have pale or purple fingers or toes from cold and stress. Depending on your symptoms, requests might include seating, scheduled rest breaks, moving outdoor duties to a coworker or to shaded or indoor work, window shades or a workstation away from direct sun, or a warmer workspace, as long as the change does not cause undue hardship, which 29 CFR 1630.2(p) defines as significant difficulty or expense. The EEOC also lists avoiding temporary adverse conditions in the work environment among reasons an employee with a disability may need leave. 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.

Appointments, Leave, and Working From Home

MedlinePlus says people with lupus often need to see different providers, usually a primary care provider and a rheumatologist, and other specialists such as a cardiologist depending on how lupus affects the body, with the treatment plan reviewed often. 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 and for recuperating from an illness or an episodic manifestation of the disability, and that granting time off or an adjusted schedule may involve modifying leave or attendance procedures. A modified schedule that fits around recurring appointments may also be a reasonable accommodation under Section 12111(9). 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 specific test for lupus, that it is often mistaken for other diseases with similar symptoms, and that it may take a while to get a diagnosis; providers use symptoms, medical and family history, a physical exam, blood and urine tests, and sometimes biopsies. 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 what is affected, such as standing for long periods, working in direct sunlight, or keeping a fixed start time during flares, 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 of a current employee or ask whether the employee is an individual with a disability or about the nature or severity of the 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 Lupus

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, including dates and the names of the people involved. 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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