Article

Sickle Cell Disease at Work: Your ADA, GINA, and FMLA Rights

How the ADA, GINA, and FMLA protect workers with sickle cell disease or sickle cell trait, including coverage based on hemic function, pain crises and unplanned absences, schedule changes and leave, genetic testing and family medical history, medical questions and confidentiality, FMLA intermittent leave, retaliation, and deadlines.

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How Sickle Cell 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 describes sickle cell disease as a group of inherited red blood cell disorders in which hemoglobin forms stiff rods that change the shape of red blood cells, which can lead to anemia and fatigue, and says blocked blood flow can cause sudden, severe pain attacks called pain crises that can occur without warning and may require hospital treatment. Under 29 CFR 1630.2(h)(1), an impairment includes a physiological disorder affecting the hemic 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 hemic, circulatory, and cardiovascular functions. Coverage is still decided individually, 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.

Treatment Does 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 such as medication, so an employer cannot rely on the fact that treatment keeps you working between crises to deny that you have a disability. 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 record of an impairment that substantially limited a major life activity is 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.

Pain Crises, Unplanned Absences, and Schedule Changes

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 a modified schedule may involve adjusting arrival or departure times, providing periodic breaks, or altering when certain functions are performed, and that 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 recuperating from an illness or an episodic manifestation of a disability. 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, absent undue hardship. If more than one accommodation would work, the employer may choose among effective options. 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.

Sickle Cell Trait, Genetic Tests, and Family History

MedlinePlus explains that a person born with one sickle cell gene has sickle cell trait and is generally healthy, while a person with sickle cell disease has two. Title II of the Genetic Information Nondiscrimination Act, enforced by the EEOC, makes it illegal to discriminate against applicants or employees because of genetic information, which under 29 CFR 1635.3 includes your genetic tests, your family members' genetic tests, and family medical history; the regulation lists carrier screening to determine the risk of conditions such as sickle cell anemia in future offspring as an example of a genetic test. Under 29 CFR 1635.8, an employer generally may not request, require, or purchase genetic information, subject to narrow exceptions, and under 1635.9 genetic information it has in writing must be kept confidential and separate from personnel files. Under 29 CFR 1635.12, information about a disease you actually have is medical information rather than genetic information, even if the disease has a genetic basis, so questions about a sickle cell disease diagnosis are governed by the ADA's medical-inquiry rules instead.

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.

FMLA Leave for Sickle Cell Disease

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 825.115(c) covers 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, and the EEOC says GINA also makes it illegal to retaliate against applicants or employees for filing a charge, participating in a proceeding, or opposing genetic information discrimination. Keep a written record of each accommodation or leave request, every response, and any discipline, attendance points, 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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