Article

Returning to Work After a Stroke: Your ADA and FMLA Rights

How the ADA and FMLA protect workers recovering from a stroke, including coverage based on walking, seeing, speaking, thinking, and neurological and brain functions, protection for a past stroke even after a full recovery, FMLA leave and job restoration, fitness-for-duty notes and why an employer cannot demand you be 100% healed, accommodations for weakness, vision, speech, aphasia, memory, and fatigue, reassignment, medical questions, retaliation, and deadlines.

8 min read

How a Stroke 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 says a stroke happens when there is a loss of blood flow to part of the brain, either from a blood clot that blocks a blood vessel (ischemic stroke) or from a blood vessel that breaks and bleeds into the brain (hemorrhagic stroke), and it lists effects that can include weakness in the face, arm, or leg, usually on one side, eyesight problems, trouble speaking or understanding others, confusion or memory loss, and personality, mood, or emotional changes. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities expressly include walking, seeing, speaking, reading, concentrating, thinking, communicating, performing manual tasks, and working, as well as the operation of major bodily functions, including neurological, brain, and circulatory functions. Coverage is still decided individually rather than by diagnosis alone, but the ADA's definition of disability is meant to be construed broadly, and under 29 CFR 1630.2(j)(1)(ix), the effects of an impairment lasting or expected to last fewer than six months can still be substantially limiting.

Protection Even After a Full Recovery

MedlinePlus says problems moving, thinking, and talking often start to improve in the days to weeks after a stroke and that many people keep improving in the months or years afterward, so some workers return with no visible limitations. Under 29 CFR 1630.2(k), a person with a record of an impairment that substantially limited a major life activity is protected, which means an employer cannot demote, pass over, or fire you because you had a stroke in the past, and under 1630.2(l), a person who is regarded as having an impairment is protected from discrimination as well, for example when a manager assumes you can no longer handle a demanding role without asking what you can actually do. 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 judged without regard to the helpful effects of mitigating measures such as medication and therapy, and under 1630.2(j)(4)(ii), the negative side effects of medication 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), but a person with an actual disability or a record of one can be entitled to accommodation for needs such as follow-up appointments.

FMLA Leave and Getting Your Job Back

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, which a hospital stay for a stroke will usually meet. 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, and eligible employees can generally take up to 12 workweeks of job-protected leave in a 12-month period. Under 29 CFR 825.214, when you return from FMLA leave you are entitled to the same position you held when leave began or an equivalent position with equivalent benefits, pay, and other terms and conditions of employment, even if you were replaced or your position was restructured while you were out. Under 29 CFR 825.216(c), if you are unable to perform an essential function of the position because of a continuing health condition, you have no right to restoration to another position under the FMLA, but the employer's obligations may still be governed by the ADA.

Return-to-Work Notes and the 100% Healed Rule

Under 29 CFR 825.312, an employer with a uniformly applied policy may require a fitness-for-duty certification before you return from FMLA leave for your own serious health condition, limited to the particular condition that caused the leave, and it may ask that the certification address your ability to perform the essential functions of your job if it told you so in the designation notice; the employer may delay restoration until a required certification is provided, and under 825.312(h), any later medical examination must be job-related and consistent with business necessity under the ADA. The EEOC's guidance on employer-provided leave says an employer will violate the ADA if it requires an employee with a disability to have no medical restrictions, that is, be 100% healed or recovered, if the employee can perform the job with or without reasonable accommodation, unless providing the needed accommodation would cause an undue hardship. The same guidance says that if you return with restrictions from your doctor, the employer may ask why the restrictions are required and how long they may be needed and explore accommodations with you and your doctor, and that an employer may have to grant leave beyond its maximum leave policy as a reasonable accommodation unless doing so would cause an undue hardship.

Accommodations for Weakness, Vision, Speech, and Memory

MedlinePlus says stroke rehabilitation includes physical therapy to relearn movement and coordination, occupational therapy for daily living skills, speech-language therapy to help with speaking, understanding, reading, writing, and swallowing, cognitive therapy for thinking, learning, memory, planning, and decision making, and vocational rehabilitation to build skills for working at a job, and it says that most people need some type of long-term rehabilitation. It describes aphasia, for which stroke is the most common cause, as a language disorder that makes it hard to read, write, and say what you mean to say. Under 42 U.S.C. Section 12111(9), reasonable accommodation may include making facilities readily accessible, job restructuring, part-time or modified work schedules, reassignment to a vacant position, and acquisition or modification of equipment or devices. Depending on your symptoms, requests might include a gradual return on reduced hours, time off for therapy sessions, one-handed or voice-recognition tools, screen magnification or larger text, written instructions and checklists, extra time to respond in meetings, a workspace closer to the entrance, or rest breaks for fatigue, as long as the change does not cause undue hardship, which 29 CFR 1630.2(p) defines as significant difficulty or expense. 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.

Reassignment, Documentation, and Medical Questions

If no accommodation would let you perform the essential functions of your current job, the EEOC treats reassignment as an accommodation of last resort, and its leave guidance says that when reassignment is required, the employer must place you in a vacant position for which you are qualified without requiring you to compete with other applicants. When the need for accommodation is not obvious, an employer may ask for reasonable documentation about the disability and the functional limitations involved, but not for your complete medical records, so a note from your neurologist or therapist describing what is affected, such as lifting with one arm, reading small print, or working long shifts, 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 about the nature or severity of a disability unless the examination or inquiry is job-related and consistent with business necessity, and under Section 12112(d)(3) and (4), medical information must be kept in separate, confidential medical files, with limited exceptions such as informing supervisors about necessary work restrictions and accommodations. The EEOC also says reasonable accommodation is always prospective, so it helps to ask before slower work or missed tasks turn into discipline.

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 FMLA separately prohibits interfering with or retaliating for the use of protected leave. Keep a written record of your leave dates, each return-to-work note and accommodation request, every response, and any discipline, demotion, 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. FMLA claims do not go through the EEOC and have their own deadlines, so it helps to get advice from an employment lawyer early.

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