MS and ADA

Question

I was looking for accomodations information and found this statement from ADA about people with MS - read the last paragraph, last line - everyone with MS qualifies for ADA one way or another.............

from http://askjan.org/media/MS.html - 

MS and the Americans with Disabilities Act
 
Is MS a disability under the ADA?
 
The ADA does not contain a list of medical conditions that constitute disabilities. Instead, the ADA has a general definition of disability that each person must meet on a case by case basis (EEOC Regulations . . . , 2011). A person has a disability if he/she has a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or is regarded as having an impairment (EEOC Regulations . . . , 2011). 

However, according to the Equal Employment Opportunity Commission (EEOC), the individualized assessment of virtually all people with MS will result in a determination of disability under the ADA; given its inherent nature, MS will almost always be found to substantially limit the major life activity of neurological function (EEOC Regulations . . . , 2011).

twopack · Answer

Some confusion may be coming from the origins of this discussion.
Lulu posted a quote which appeared on a site called the 
     JAN - Job Accommodation Network
to explain the provisions of the
     ADA - American with Disabilities Act
but they attribute the quote to the 
     EEOC - Equal Employment Opportunity Commission
which makes sense as those who enforce laws tend to understand them.

Further complicating things, a side conversation started about 
     FMLA - Family Medical Leave Act
which doesn't require a disability OR even a diagnosed illness.

LilMinnie · Answer

Yes, I should have been more clear. ADA and FMLA are two completely separate things. Twopack did an excellent job explaining the difference.

Lulu54 · Answer

As part of the other discussion with HR we talked about accomodations under the ADA laws, but right now there isn't anything I need done to help me do my job- This could be something as simple as changing my computer workstation setup and software to handle any special needs, to revamping my work access if I were in a wheelchair or needed to use a motorized cart of some type. The FMLA regulations are separate from the ADA - you don't have to have a disability to apply for FMLA. I imagine at this point, doublevision, we have you really confused as to how these laws all work.

twopack · Answer

Not really doublevision.

FMLA doesn’t actually have anything to do with the ADA (Americans with Disabilities Act), accommodations in the work environment, pay, disability or the EEOC (Equal Employment Opportunity Commission).  It is a federal law that was enacted to insure that workers wouldn’t have to choose between a work schedule and caring for themselves/family members during times of illness or special need.

FMLA (Family Medical Leave Act) is a federal law that entitles eligible employees to take UNPAID and JOB-PROTECTED leave for medical reasons of their own or certain other family members.  FMLA guarantees an employee can step back into their present job when they return from an excused absence lasting no more than 12 weeks (26 in some circumstances). 

Eligible employees are entitled to twelve weeks of leave in a 12 month period for:

     A serious health condition that makes the employee unable to perform
          the essential functions of his/her job.
     The birth of a child and to care for the child within one year of birth.
     The placement of a child for adoption or foster care and the care 
          for the newly placed child within one year of placement.
     Caregiver needs made necessary by the serious health condition 
          of a spouse, child or parent.
     Certain needs arising out of the fact that a spouse, son, daughter, 
          or parent is an active duty member of the military.

OR eligible employees are entitled to twenty-six workweeks of UNPAID,
     JOB PROTECTED leave during a single 12-month period to care for 
     a spouse, son, daughter, parent, or next of kin who is a service 
     member with a serious injury or illness (military caregiver leave).

Lulu54 · Answer

DV- that is exactly what this means.  the whole law as to what companies can and cannot do is a double -edged sword.  It can bite us as well as help us.  Right now, I am on the short end of the stick- really weird to have that come up.  I did the FMLA paperwork on the advice of my HR benefits person, who said I need to document my medical needs for absences so I am protected and then she had to turn around and tell me I don't qualify.  Go figure.........

LilMinnie · Answer

Well, it's complicated.  Companies are required to accommodate those with disabilities and there are strict laws for this. There is what is called the  Family and Medical Leave Act, which allows an employee to be off work for a maximum of 12 weeks per year for either personal or a family member's medical issues. 

It gets sketchy though because smaller companies have exceptions.  While it is required by law that due to absence related to illness or disability should not result in job loss, and you are supposed to be at least retained in an equivalent position, some places try to get around this by finding other reason, such as poor job performance, to get rid of people. I'm seeing this happen where I work. I'm not going to name names, but the place I work would be a place one would least expect it.

So, while I am vested, unless I have a diagnosis and "legitimate" disability, although I qualify for FMLA, the very real possibility exists that I can lose my job. 

I want to work as long as I can, and I'm not trying to take advantage. I understand companies need people who will be there and able to work. 

Just very scary for those of us who are either in limbo or even diagnosed. 

I'm sure there are others who can give better insight and explanation. 

Hugs, 
Minnie

doublevision1 · Answer

Does this mean that in the US, one must work a certain number of hours in order to be protected from job discrimination based on disability, and in order for their employer to be required to provide accommodation?

LilMinnie · Answer

I'm getting ready to reapply for my Intermittent FMLA. You are so correct in that one has be very diligent. I have close to 25 years with my company, and need a little over 5 years to qualify for my full retirement since I was only 22 when I started there. 

Due to budget reasons they are trying to weed out those of us who have a lot of service. I am so afraid my health issues will be used as an excuse to get rid of me. Due to fatigue and cog fog without a diagnosis I won't qualify for any type of accommodation or disability before I can retire. Trying very hard not to worry. Very difficult, though. 

Hugs, 
Minnie

Lulu54 · Answer

All,

 I was looking for this information because I was researching FMLA - Family Medical Leave Act.  To add to the personal details here, I applied for FMLA through our HR departmnet and got the supporting documentation from my neurologist.  I have worked full-time (10 months a year) for 22 years with this employer, so imagine my surprise when I got an email telling me my request for FMLA was turned down.  

According to the law, to qualify for FMLA you have to have WORKED  1,250 hours in the previous 12 months.  Lunch times do not count in this total.  Vacation days do not count in the total.  Nor do sick days.  We have a great holiday plan and get 15 days a year of holiday pay - you guessed it right if you are thinking holidays don't count, either.

So thanks to a very generous benefit package and having to use 1-2 days per months for medical appointments, I fall just short of the required 1,250 days.  Even if I add back in the 70 hours I took for my bunion surgery in April, it still falls just short of the 1,250 hours.  No matter how I add it up, I see no way of reaching 1,250 hours WORKED in any 12 month time. 

Fortunately I don't believe I need the FMLA protection for my missed work time, but you never know.........

Oh,  the things we learn on this journey-
Laura

LilMinnie · Answer

Oh my, I feel for you. Your situation is exactly what I was referring to. 

I know you don't want to be diagnosed with something you don't have, yet if you don't have MS, what is it? Right now, because I'm in the early diagnostic process, my family is pretty supportive. Yet if nothing is found, then people begin to think you're seeking attention and making things up. That's what happened with my neck. For two years I went through the "it's stress" thing. My doctor didn't take me seriously at all. Family and friends doubted me, too. 

I'll keep you in my thoughts and prayers. I hope you at least find answers soon. 

Hugs, Minnie

PastorDan · Answer

Rant away, Minnie.  I hear what you're saying.

I wasn't going to get too personal with this, but here's the deal: I do not have enough quarters in to qualify for Social Security.  Under the public retirement system that my money's gone to for years, I can get disability -- but only if diagnosed within two years of my last workday under the plan.  I was laid off by that employer almost three years ago.  The part-time jobs I've had since then haven't had any such benefit plans.  So, even if neuro #5 gives me an ironclad dx tomorrow, it's too late for me to qualify for disability benefits.  If, on the other hand, I'd been able to convey to the parade of docs the urgency I felt during my previous bouts, I might be in a far better position.

debgen · Answer

Thanks for posting this. It is always uplifting to receive some "good" news for us MSers! I really do hope doctors realize the importance of a quicker, yet accurate dx.

Cheers,
Deb

HVAC · Answer

MS is definitely recognized under the ADA in NC. Polly my Service Dog and I were honored by the General Assembly of NC for the 20th Anniversary of the ADA a few years back.

Alex

LilMinnie · Answer

I would like to apologize for my above rant (I wish we could edit). Thank you for researching this and taking the time to share it. 


Thank you again, Hugs, Minnie

SarahL2491 · Answer

thanks for posting this!  Am going to print it out as I have had knock down arguments with people/professionals over this very topic

LilMinnie · Answer

Good question. While I certainly don't want a "rushed" diagnosis, I find it appalling to read of people who have been searching for answers for years with nothing. Some doctors even go so far as to say the patient has conversion disorder. "  

All I ask is... if it isn't MS, give me a good reason for your finding and tell me what I DO have. Don't say I'm imagining things because you don't know! 

What is also disheartening is how the MacDonald criteria isn't consistently used. I see so many instances on these forums of people who are diagnosed, then have the diagnosis taken away by another doctor. 

Sorry for the rant. I haven't been going through the diagnostic process very long and already I am getting frustrated. I have a demanding job that requires me to be " on" all the time and I feel myself fading fast. I like my current neurologist a lot but can't help but wonder... What happens if he doesn't find anything conclusive? 

Thanks for "listening" :) 

Hugs and blessings, 
Minnie