New York Employment Lawyer Blog

The same ground-ball disability discrimination case passes through our firm every three months. It usually unfolds like this - a potential client calls and informs us that he or she is ineligible for FMLA leave and is being told that his or her position will not be held open if he or she opts for a short leave to accommodate the need for medical treatment for a chronic disability. My advice - let them fire you, sit back and wait for your settlement and watch as the HR representative who fired you is him or herself fired. Permitting the use of accrued paid leave, or unpaid leave, is a form of reasonable accommodation under the Americans with Disabilities Act when necessitated by an employee's disability. While the Second Circuit has not ruled on the issue, many other circuits, district courts throughout the Second Circuit and the EEOC have determined that unpaid leave - even leave beyond that which is permitted by a company's policies - is a reasonable accommodation provided that the company does not face an undue hardship in providing the accommodation. In fact, a federal judge in the Northern District of New York recently refused to dismiss a complaint on a defendant's motion to dismiss where the plaintiff had been fired during a 9 month unpaid leave finding that the plaintiff had alleged a prima facie case of disability discrimination for failure to accommodate. As many an HR employee has learned the hard way, the right to unpaid leave for medical treatment of a disability is protected by both the FMLA and the ADA for qualifying disabilities.

The following is a guest blog article by Dolan Law Offices:

Approximately 36% of people with disabilities who are of working age and live in the community are employed. This means that more than 8.5 million disabled people are working in the United States. While some of these people have been disabled their entire lives, others were just victims of serious personal injury accidents which caused their disabilities. For example, a serious motor vehicle accident can result in spinal cord injuries, traumatic brain injuries and other serious physical limitations.

The Right to Return to Work

The federal Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide people with disabilities an equal opportunity to benefit from the full range of employment-related opportunities. A person with a disability, for purposes of ADA protection, is one who has a physical or mental impairment that substantially limits one or more major life functions.

Reasonable Accommodations

An employer has the responsibility to make reasonable accommodations for a person with a disability. Reasonable accommodations are highly individualized and dependent on the person and type of disability. They may include things such as:

• Building renovations to include a handicap-accessible ramp or bathroom;
• Providing sign language interpreters and TTY services;
• Providing Braille materials and / or readers; and
• Allowing a person to take time off to get medical attention or rehabilitation services related to the disability.

The ADA defines reasonable accommodations as the type of activities, services or renovations that do not create an undue hardship for the employer. The U.S. Equal Employment Opportunity Commission (EEOC) and courts will consider things such as the nature of the accommodation, the cost of the accommodation with relation to the assets of the employer, and whether any other accommodations exist that would allow the employee to benefit from the full range of employment-related opportunities and would be less of a burden to the employer.

What to Do If You’ve Been Denied Reasonable Accommodations

If you believe that you have been discriminated against because of your disability and that you have been denied an equal opportunity in recruiting, hiring, promotion, training, pay or any other employment benefit, then you may have the right to file a complaint with the EEOC. A lawyer can help you evaluate your case and represent you before the EEOC and in any subsequent or related legal proceedings.

Dolan Law Offices is a Chicago, IL personal injury law firm. We represent victims who suffer serious injuries such as traumatic brain injuries and spinal cord injuries in Illinois. We are committed to helping each of our clients recover full and fair compensation for their injuries.

My seven month old daughter hardly every blinks. My wife and I noticed this at some point in the fall and debated the origin and seriousness of the condition. In my uninformed opinion, low frequency blinking is a genetic characteristic. My wife was unconvinced and had her checked out by our pediatrician, who said it wasn't a problem (but didn't elaborate).

Why do babies blink less than adults? As it turns out, a number of factors contribute to low frequency blinking in babies, including less stress and more sleep than adults (go figure).

I was not entirely wrong. There is some evidence to suggest that low frequency blinking is an inherited trait. So could an airline require genetic testing for pilot candidates in the hopes of weeding out high frequency blinkers and identifying low frequency blinkers? If the condition is genetic, probably not. In the last 10 years, the federal government, and many local governments, have passed legislation prohibiting discrimination in employment based on genetic predisposition.

Too far fetched? Think again. Disability discrimination claims have originated this way. In fact, the Burlington Northern Santa Fe Railroad was sued by the EEOC for requiring that their employees who file claims for work-related carpal tunnel syndrome undergo genetic testing for a genetic deletion that has been proposed to make a person more susceptible to the condition. Before it went to trial, the Burlington Northern Santa Fe Railroad settled the lawsuit and stopped requiring genetic testing for their employees.