Article

Multiple Sclerosis at Work: Your ADA and FMLA Rights During Flare-Ups and Treatment

How the ADA covers multiple sclerosis at work, including flare-ups and remission, EEOC examples on leave, heat, and schedules, FMLA leave, and your deadlines.

8 min read

Multiple Sclerosis Is Almost Always a Disability Under the ADA

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. The EEOC's ADA regulations list multiple sclerosis among the impairments that, given their inherent nature, will virtually always be found to substantially limit a major life activity. Under 29 CFR 1630.2(j)(3)(iii), it should easily be concluded that multiple sclerosis substantially limits neurological function, which 42 U.S.C. Section 12102(2)(B) counts as a major bodily function. The assessment is still individualized, but for MS the regulation says it should be particularly simple and straightforward.

Relapses, Remission, and Treatment Do Not Erase Coverage

The National Institute of Neurological Disorders and Stroke describes MS as a disease whose course differs from person to person, and says most people with MS have short periods of symptoms that resolve fully or partially, followed by long stretches without noticeable symptoms. Under 42 U.S.C. Section 12102(4)(D), an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Under Section 12102(4)(E), coverage is decided without regard to the helpful effects of mitigating measures such as medication. So an employer cannot deny that you have a disability because you look well today, are between relapses, or are doing well on a disease-modifying therapy.

Symptoms That Can Affect Work

NINDS lists symptoms that can include vision problems such as double vision or optic neuritis, muscle weakness and stiffness, tingling or numbness, fatigue that may be physical or cognitive, and cognitive changes such as problems concentrating, multitasking, or remembering. It also says many people with MS find their symptoms worse when they have a fever or are exposed to heat. When you ask for an accommodation, it helps to describe the specific limitation, such as fatigue by midafternoon, heat sensitivity, or difficulty walking long distances, and how it affects particular tasks, rather than only naming the diagnosis.

Accommodations the EEOC Describes

Under 42 U.S.C. Section 12111(9), reasonable accommodation includes job restructuring, part-time or modified work schedules, acquisition or modification of equipment, and reassignment to a vacant position. The EEOC's reasonable accommodation guidance lists, among the reasons an employee may need leave, recuperating from an episodic manifestation of a disability and avoiding temporary adverse conditions in the work environment, giving the example of an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis. The EEOC's telework guidance says working at home may be a reasonable accommodation even if the employer has no telework program, where the disability prevents successfully performing the job on-site and the job, or parts of it, can be done at home without significant difficulty or expense. You may ask in plain English; the EEOC says you do not need to use the words ADA or reasonable accommodation, and a family member or health professional may make the request for you.

Medical Documentation After a Relapse or Hospitalization

The EEOC's reasonable accommodation guidance uses a multiple sclerosis example: when a spouse informs a supervisor that an employee was hospitalized because of an MS emergency and needs time off, that is a request for reasonable accommodation, and the supervisor can ask for documentation from the treating physician confirming that the hospitalization was related to MS and how long an absence may be needed. When the disability or need for accommodation is not obvious, an employer may ask for reasonable documentation about the impairment, its limitations, and why the accommodation is needed. The EEOC says that in most situations an employer cannot request your complete medical records, because they are likely to contain information unrelated to the disability at issue. If you refuse to provide reasonable documentation, the employer can lawfully deny the request, so respond and keep copies of what you send.

Leave, No-Fault Policies, and 100 Percent Healed Rules

The EEOC says an employer may have to grant unpaid leave as a reasonable accommodation when an employee needs it because of a disability and it does not cause undue hardship, even if the employer does not offer leave as a benefit or the employee has used up the leave the employer provides. Under the EEOC's leave guidance, employers may have maximum leave policies, sometimes called no-fault policies, but may have to grant leave beyond the cap as an accommodation, and an employer will violate the ADA if it requires an employee with a disability to be 100 percent healed or free of restrictions to return when the employee can do the job with or without reasonable accommodation, unless it can show undue hardship. Leave may be requested in a block or intermittently. The EEOC also says indefinite leave, where an employee cannot say whether or when they will be able to return at all, is an undue hardship and does not have to be provided.

What an Employer Does Not Have to Provide

An employer need not provide an accommodation that would impose an undue hardship, which 42 U.S.C. Section 12111(10) defines as significant difficulty or expense in light of factors such as cost and the employer's resources. The EEOC gives the example of a convenience store clerk with multiple sclerosis who asked to go from full-time to part-time; because the second clerk on each shift could not absorb the extra work and the store could not serve customers, stock shelves, and maintain security, the employer could show undue hardship and refuse to reduce the clerk's hours. The EEOC adds that the employer should still explore whether any other reasonable accommodation would help without undue hardship. An employer also does not have to eliminate an essential function of the job and may choose among effective accommodations, so if your first request is refused, ask in writing what alternatives would work.

FMLA Leave for MS Relapses and Treatment

If your employer is covered by the Family and Medical Leave Act, you may be eligible for up to 12 workweeks of job-protected leave in a 12-month period if you have worked there for at least 12 months, worked at least 1,250 hours in the 12 months before leave, and work at a site with at least 50 employees within 75 miles, under 29 CFR 825.110. Under 29 CFR 825.115(c), a chronic serious health condition is one that requires periodic treatment visits at least twice a year, continues over an extended period including recurring episodes, and may cause episodic rather than continuing incapacity. When MS meets that definition, 29 CFR 825.202 permits intermittent leave or a reduced leave schedule when medically necessary. FMLA and ADA rights can apply at the same time, and the EEOC says an employer may have to provide unpaid leave as an ADA accommodation even after an employee has exhausted FMLA leave, unless it would cause undue hardship.

Retaliation and Deadlines

Under 42 U.S.C. Section 12203, an employer may not retaliate against you for opposing disability discrimination or for making a charge, testifying, assisting, or participating in an ADA investigation, proceeding, or hearing, and it may not coerce, intimidate, threaten, or interfere with you for exercising ADA rights. 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. Keep copies of accommodation requests and replies, doctor's notes and restrictions, a simple log of relapses and how they affected your work, performance reviews from before and after your diagnosis, attendance warnings, and messages about your condition.

When to Get a Free Consult

Consider a free consult if your employer refused a schedule change, telework, cooling, or leave for MS symptoms, counted relapse-related absences against you under a no-fault policy, required you to return with no restrictions, demanded your full medical records, or fired or demoted you soon after you disclosed your diagnosis or asked for an accommodation. A lawyer can review whether your employer is covered, how the deadlines apply, and what evidence to preserve. YesLawyer offers a free consult, and there is no fee unless we win.

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