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Thursday, October 04, 2007

ADA Question

Hello Evil HR Lady!

I have this niggling little question relating to an ADA issue. The background could run to, oh, 15+ paragraphs--it's all med related. Basically, last years, i had some medication related issues (I'm bipolar) that offended my cowrkers (OK, side effects made me smell). i got these under control, but then I had to tweak some stuff and it happened again and we (my doc and I) had to change assumptions about what happened. Both times involved time off for me. Apparently, I had agreed, with my supervisor and the ADA coordinator, to have my psychiatrist notify them in writing of any medication changes.

Well. I changed meds recently. i let slip to my supe that I did. the med I changed to was the one we originally thought was the problem--though now we are actually sure it wasn't. They, however, were never told. I never realized I agreed to any such thing. The reason I changed is because, well, the stress level in my office was...erm, driving me crazy. Er. Ahem.

So anyway, I've got an ADA coordinator breathing down my neck for a letter.

Cut to the chase: I don't want to give her jack. The most I intend to give her, and my doc is fully behind me (after the first 'issue", where we had a 90 minute after hour session--$200/hour...) is basically a letter saying "CNS has changed his meds". I don't think she can even ask that much legally, and I'm quite sure she can't demand any more.

Oh yeah--I had been hoping they'd forgotten and it'd just pass. but my supe brought it up yesterday. What he said about it was that she said the letter was "mandatory". Quite frankly, in normal times, that ticks me off--but I'm switching meds because I'm severly off-kilter and at this point, due to fears of "offending" my coworkers, we have dropped one med and the other is not yet effective. So I am effectively unmedicated and kind of a pissed off bastard.

But I do try to be polite.

thanks for your time

Now for the usual disclaimers. I am not a lawyer. I am not an official expert on ADA. I am not the Queen of England. (I know there was some confusion over that last point, what with me being anonymous after all. Do you think Queen Elizabeth blogs? That would be interesting.)

I've bolded a few things in your letter. According to my understanding, these things are illegal. Your illness has already been certified as an ADA (American's with Disability Act) eligible. I am going to assume that is the case. Here is information from the EEOC itself:
6. Should the corrective effects of medications be considered when deciding if an impairment is so severe that it substantially limits a major life activity?

No. The ADA legislative history unequivocally states that the extent to which an impairment limits performance of a major life activity is assessed without regard to mitigating measures, including medications. Thus, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity. Relevant evidence for EEOC investigators includes, for example, a description of how an individual's condition changed when s/he went off medication23 or needed to have dosages adjusted, or a description of his/her condition
before starting medication.

In plain English, your medication status doesn't change whether or not you qualify under ADA. Therefore, if they have certified that your illness is eligible (which it appears that they have) they do not need to know what medications you are on.

Now, companies only have to make "reasonable" accommodations. This can vary from company to company and situation to situation. If your condition prevented you from performing the essential job function you can be terminated. If the accommodation you need is "unreasonable" you can be terminated (or not hired in the first place).

I don't know what, if any, accommodations you need to perform your job. The central issue seems to be the unfortunate stinky side effect of your medication. I don't know how bad the smell is, but it wouldn't be unreasonable in some jobs to place you in a separate area. It would be unreasonable in other jobs. (For instance, in a desk job, you could be given a cube/office away from others. On a manufacturing line where everyone has to stand two feet apart, that would not work.)

My advice. Print out the above paragraph and the next time your ADA coordinator wants a med list, hand it to her and say, "why would you knowing what medications I'm on be relevant to this situation?" Then just keep repeating yourself.

Second piece of advice, (I edited your question for space, so my readers are about to be confused), you are unhappy in the job because of the work itself. You feel underutilized. Start looking for a new job. Put your resume together and head out job hunting. It's easier to find a job when you have one, so start looking now.


Anonymous said...

Evil: The guidance that you have pointed out in "Question 6" has been superceded by a pair of Supreme Court decisions in 1999, I believe. The EEOC issued new guidance with instructions to their field offices in 1999 about this.

They also note explicitly that Question 6 guidance has been superseded. There are other resources out there so I won't belabor the point but disability is determined taking into account a mitigating measure. The summary from the EEOC in 1999 -- which should be further examined, I'm just doing a quick recap -- provides the newer analysis.

"This year, the Supreme Court held in Sutton and Murphy that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in a major life activity when using a mitigating measure, such as medication, a prosthesis, or a hearing aid. A person who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the ADA's first definition of "disability" (a physical or mental impairment that substantially limits a major life activity). In Albertsons, the Court extended this analysis to individuals who specifically develop compensating behaviors to mitigate the effects of an impairment. In so ruling, the Supreme Court rejected the Commission's position that the beneficial effects of mitigating measures should not be considered when determining whether a person meets the first definition of "disability."

In all of these cases, the Supreme Court emphasized that, consistent with EEOC's position, the determination of whether a person has a "disability" must be made on a case-by-case basis. The Court stated that it could not be assumed that everyone with a particular type of impairment who uses a particular mitigating measure automatically was included -- or excluded -- from the ADA's definition of "disability." Nor does the definition of "disability" depend on general information about the limitations of an impairment. Rather, one must assess the specific limitations, or lack of limitations, experienced by a Charging Party (CP) who uses a mitigating measure or compensating behavior to lessen or eliminate the limitations caused by an impairment.

The Court also emphasized that the disability determination must be based on a person's actual condition at the time of the alleged discrimination. Therefore, if a CP did not use a mitigating measure at that time, an Investigator must determine whether s/he was substantially limited in a major life activity based solely on his/her actual condition. For the purpose of determining whether a CP meets the definition of "disability," speculation regarding whether the person would have been substantially limited if s/he used a mitigating measure is irrelevant."

Evil HR Lady said...

Since Dan is, in fact, a lawyer, we'll believe him.

I don't think that means that they can require a list of medications. Correct me if I'm wrong, Dan!

Unknown said...

Asking for medical information is quite different. While there may be safety reasons for asking what medications an employee is on (remember the label warnings: don't use heavy equipment on this medication) so long as a doctor certifies the employee that should be sufficient for the employer. The employer, after all, is not a doctor.

I suspect there's more background to this and talking the issue through with the doctor and having the doctor act as a go-between may help.

Evil HR Lady said...

That's exactly what I thought. Thanks Dan!

Anonymous said...

Thanks for answering, Evil HR Lady. She's gonna get the letter, she just won't be happy--especially since she's been bugging my poor boss about it for a couple weeks. Oh well.

It was a much better HR department when I worked there.

But then...I'm kinda evil...