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The ADA’s Loophole for the Chronically Ill--An Editorial

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Wellness related image Photo: Getty Images

The Americans with Disabilities Act (ADA) protects people with disabilities from discrimination, and requires employers to provide reasonable accommodations for disabled employees. That sounds pretty great until you get into the details.

A “disability” under the ADA is a substantial impairment of a major life activity. Major life activities include walking, talking, seeing, hearing – the usual list of functions – as well as bodily functions like bowel, digestion, and the immune system. Thus, while there may have been questions about whether something like Crohn’s disease was a disability under the ADA before the 2008 Amendments took effect, now there can be no question that a disease that substantially impairs bowel and digestive functions is, in fact, a disability.

In addition, the 2008 Amendments to the ADA established that an episodic illness that’s disabling when active is disabling when in remission. This was a great breakthrough for people with chronic illnesses. Indeed, I think it’s the first time chronic illness has been recognized in American law.

So what’s the problem? Well, to be entitled to the protections of the ADA, you have to be a “qualified individual” with a disability. A “qualified individual” is someone who can perform the essential functions of the job, with or without accommodation. So if you work on a computer and have carpal tunnel syndrome, but you could perform the essential functions of the job with a voice activated computer, then you’re a “qualified individual.”

So again, what’s the problem? Well, if attendance is an essential function of the job, and if your main limitation is that you can’t make it to work every day, or you can’t be on time every day, then you’re not a “qualified individual” even if you are disabled. And here’s the rub for the chronically ill. Most of the time, when we flare, we’re tied to a bathroom or a bed. The problem isn’t something that can be solved with adaptive technology or ergonomics. The problem is absenteeism, and absenteeism is not protected under the ADA unless being present in the workplace is not an essential function of your job. For example, if you have a job you can do from home, then attendance is not an essential function. But most employers take the position that attendance is essential, even if just for purposes of supervision.

So if attendance is an essential function of your job, read my article on the Family & Medical Leave Act. That’s the protection you have if your problem is absenteeism. But if you are absent more than 12 weeks in any 12 month period, you will exceed the allowance under the FMLA, and even if you are disabled, you can be fired.

A heck of a loophole if you ask me.

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