Get a Doctor and Work with One

Disability Rights
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FMLA leaveBecause of the ADAAA, many employers today will not put up a fight as to whether you are disabled. However, particularly for mental disabilities, sometimes an employer will request follow-up information from your doctor. In some circumstances, your employer may even ask you to take what is called an independent medical exam (IME), which is an exam conducted by a doctor chosen by the company. Regardless of whether your employer requests such information, it is important that you stay in close communication with your doctor and that he or she understand what kind of information your employer needs. This is crucial if your disability is an anxiety disorder. In that instance, you’ll need your doctor to tie your anxiety disorder to physical or mental impairments: for example, that you have significant trouble sleeping, loss of appetite, or trouble concentrating.

Think about it. Let’s suppose that since you’ve become pregnant, you’ve started experiencing really bad headaches. You’ve even had to go to one of those emergency after-hours care (“doc in a box”) places for treatment—twice. It’s been so bad that you haven’t been able to concentrate at work. But you want to work to get that big report out. All you want is the ability to work at home for a month or so—a place where you control the lighting and where it is not nearly as noisy as the office. You’ve asked your curmudgeonly boss, but he’s an old-time butt-in-the-seat-at-the-office kind of guy and rejected your request outright. “You get headaches? So what? Join the crowd, at work” is what he said when you asked. Human resources has been little help. You know about the ADA and plan to make a request.

Which of these do you think has the greater likelihood of success?

Choice A

You draft a letter for your doctor to sign. It says, “Ms. So-and-So has really bad headaches because she is pregnant. They interfere with her ability to work. It is my opinion that she needs to work from home for a month to treat the migraines.

Sincerely, Overworked Doctor Who Barely Read this Letter Before Signing.”

Choice B

You skip the doc in the box and go to a specialist. You explain what is happening. After having read some publications by WorkLife Law and meeting with a lawyer, you even are able to explain some challenges and possibilities under the new law. After the discussion, your MD, PhD doctor writes a letter stating:

“Dear Mr. Curmudgeonly Boss and Nonresponsive Vice President of HR:

My patient suffers from chronic and sometimes debilitating migraines. As I believe you are aware, she has twice had to seek emergency medical care to treat severe episodes. After thoroughly examining my patient, I have determined that these chronic migraines are interfering with her neurological systems in the same way someone suffering from migraines that occur as the result of a concussion would. Ms. Patient must, for the next month, limit her exposure to bright lights and noise. The ideal way to accomplish this is for her to work from home, where she can control these variables. Please let me know if you require any more information from me.

Signed, Look-at-All-of-These-Degrees-and-Tell-Me-That-I-Don’t-Know-What-I’m-Talking-About”

Of course, the right choice is obvious. But let’s talk about why. Choice A is might be enough to trigger the ADA process. So, that’s at least something. It identifies an impairment of “really bad headaches.” If you sent this in yourself, you might get some pushback on whether headaches are an impairment that constitutes a disability. But this is from a doctor, so that lends some credibility. Upon receiving it, your employer likely will at least talk to you about possibilities about making a change at work. Great. You’ve saved yourself a trip to a lawyer and a specialist. The problem is this: if your employer, after some weak and pro forma efforts to help you, decides to push back, you don’t have strong grounds to fight back. Little in the letter suggests that your employer—or a court—needs expertise to understand. Everyone has some familiarity with headaches, even really bad ones. But where you really fell through the trap door is in putting “ability to work” as the major life activity. Yes, it is listed in the law as one, but that doesn’t matter. Courts hate this one. Why? A lot of people work despite interferences. You don’t need an expert to tell a court what work is about. Your employer will know that, or at least the company’s lawyer will.

Choice B is more powerful in a number of ways.

First, a “really bad headache” becomes a chronic, sometimes debilitating migraine.
Second, and most important, it moves the battlefield from an area in the bailiwick of your employer—what constitutes a substantial limit on your ability to work—to one where your doctor rules—what constitutes a substantial limit on the normal functioning neurological system. Is the vice president of HR or even a judge going to be able to tell the doctor she is wrong? Nope. Of course, the employer can require a second opinion. But it is likely to grant a temporary accommodation before going to the trouble. Even if it does ask for the second opinion, you have a real disability. So, bring it on.
Third, this letter goes the extra mile by not even mentioning pregnancy and instead comparing your disability to one suffered by someone recovering from a concussion. Why should this matter? Some courts have concocted a bizarre doctrine under which impairments that are incident to a “normal pregnancy” cannot be considered a disability. In many instances, this is wrong under the law, particularly after 2009. But you might save yourself some trouble and a fair amount of legal fees if you don’t point your employer down that path in the first place. We sidestep that here by not even mentioning the fact that you are pregnant and instead comparing what you have to the same disability that many athletes have experienced. Have a neanderthal judge who thinks pregnant “ladies” shouldn’t have a job “if it hurts to work,” but remembers that time playing college football that he got his bell rung after which he couldn’t get out of bed for week due to migraines? Yeah, well, he’s going to be much more likely to rule in your favor now that someone with an advanced medical degree has told him that you suffer from the same thing that he can relate to.

Let’s be clear. I am not asking you to game the system. Have you seen those news reports where a detective takes video of someone out on disability cutting down a tree with a chainsaw or roughhousing with the kids? This is not that situation.

What I’m recommending that you put forward is the simple truth written in a way that helps you get the protection that you need. Employment law is stacked against the employee. The law is full of strange pitfalls that prevent those who have been truly wronged from getting any kind of justice. Employees brave enough to stand up to wrongful employment actions in the workplace should be protected to the full extent possible. In the ADA context, this means explaining to your doctor the nature of your symptoms and your circumstances at work. For instance, as discussed, one relevant factor in ADA matters is how long your condition will last. The longer you will have to put up with the impairment, the more likely you are to be covered under the ADA. We’re not talking about getting a payday here—just about keeping a job that you probably very much need.

So, if you ask the doctor how long your conditions will last and she responds, “Well, let’s hope that it’s cleared up in a month or so,” follow up by explaining your difficulties at work and that you could be entitled to small changes in your work environment, but probably not if this goes away in a month or so. And you can’t keep on for a month or so. Maybe your doctor responds, “Oh, of course. I do hope that it clears up in a month or so, but in over half of my patients, it can take several courses of treatment. It’s not uncommon for your condition to continue for up to a year.” That makes a big difference in whether you get relief under the ADA—relief that many times will cost your employer next to nothing to provide. Let’s face it, the real reason your employer may not be making the changes (e.g., letting you bring a water bottle, go to bathroom more frequently, etc.) is that your boss doesn’t want you around anymore. Babies are time-consuming. People without kids are more available. Let’s go hire one of them. That’s why this is happening. That’s not right. Protect yourself with the best, most accurate information that you can get.

Here’s the bottom line if you need changes to your work due to pregnancy or some other disability. To get the relief you need, you need a doctor with a full understanding of your condition who can explain it to your employer. Your doctor should describe the medical reason underlying the need for changes in your workplace. If you can, find a lawyer with knowledge of this area before you approach your employer.