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Living with Hepatitis C
Jacques Chambers, CLU, Benefits Consultant
Although the federal American with Disabilities
Act (ADA) recently celebrated its tenth anniversary, there
is still a great deal of misunderstanding about what it does
and doesn’t do. The law itself has little impact on
benefits, despite what many may think, but it is an important
tool in the rights and protection of persons with disabilities.
As with any federal law, this law is made
up of many parts and affects different groups in different
sections. This article focuses on Title 1 of the ADA and the
protection it provides to “qualified individuals with
disabilities” of private employers. “Private employers”
includes employers, employment agencies, and labor unions.
The employees of private employers that have 15 or more employees
are protected by this portion of the law.
Title 1 of the ADA protects a person with
a disability in two primary areas: the interview and hiring
portions of obtaining a job; and being able to continue to
work at a job. It centers on the workplace and helping people
stay in the workforce.
“Disability” clearly has a
different meaning under this law than when used by Social
Security or other programs that look only at total disability.
When applied to the provisions of the ADA, a “qualified
individual with a disability” is a person who has a
physical or mental impairment that substantially limits one
or more major life activities, has a record of such impairment,
or is regarded as having such an impairment. Also, persons
who are discriminated against because they have a known association
or relationship with an individual with a disability also
are protected. HBV or HCV infection with accompanying symptoms
is considered a “disability” for purposes of protection
under the ADA.
It should be noted that questions have
been raised in the courts about the legality of applying parts
of the law to persons employed by government agencies and
quasi-public agencies such as school districts. You may want
to see what your own HR and Personnel Departments have in
the way of information on the ADA and you.
Many people mistakenly believe that the
ADA provides protections for persons who cannot work due to
a disability. It does not. Its protection ends once a person
ceases work due to a disability. What ADA does do is assist
persons who can work, but may need some extra consideration
in performing their duties so that they may continue to work.
Probably the most common misunderstanding
about the ADA is that it protects your job if you have to
stop due to a disability. There is nothing in the law that
prohibits an employer from terminating your employment if
you do not perform your job, even if it is a disability that
prevents you from doing so. There is very little in the law
that provides any assistance for persons who are totally disabled.
Other laws, such as the Family and Medical
Leave Act (FMLA) and COBRA/OBRA provide help for those
persons. The ADA is designed to protect the working person
who, due to a disability, has difficulty performing all job
Another common mistake is the belief that
the ADA somehow provides access to insurance for people with
disabilities. It does not. The ADA is very careful to spell
out that insurance companies may continue to discriminate
against persons with disabilities when performing medical
underwriting for health, life, and disability insurance policies.
This means that if you apply to an insurance company for an
individual health policy, you can be refused coverage because
of your history of HCV, and it is not a violation of the ADA
to do so. Fortunately, other legislation requires insurance
companies to accept all applicants under employer provided
health insurance coverage, HCV or not.
A “qualified individual with a disability,”
under the law, is a person who, by reason of skill, experience,
education or other requirements is able to perform the “essential”
functions of a job even though they have a medical condition
(disability) that may prevent them from performing those duties
in the same manner as they are typically performed.
The ADA also protects job applicants by
limiting the information an employer can obtain in the interview
and hiring decision processes. In the job interview, an employer
can no longer ask about your health history or medical condition.
The most they can ask is “Are you able to perform the
essential duties of this position?” You are not obligated
to answer more than that about your health.
As long as you are physically able to perform
the job that you are applying for, you do not need to, and
should not, go into details about your medical condition.
If the interviewer asks about medical history, just politely
reply, “I have no problem that would prevent me from
doing this job.”
There is some question as to when you should
notify a prospective employer of your need for accommodation
in performing the job if you require it. To avoid not being
hired because of your medical condition, it is probably a
good idea to wait until a formal job offer is made before
going into the need for any accommodation.
An employer may not require you to take
a pre-employment medical examination until a job offer has
been made. The employer may then condition the job offer on
the satisfactory result of a post-offer examination, but only
if this is required of all entering employees in the same
job category. However, the job offer may only be withdrawn
for medical reasons if the reason is job-related and no “reasonable
accommodation” is available that would permit you to
perform the essential job functions. (See below for more
on “reasonable accommodation.”)
When taking a pre-employment physical or
completing a pre-employment health questionnaire, it is important
that your responses be truthful. You should not try to hide
your medical condition. While you cannot be legally refused
a job because of your disability, you can be refused employment
for not answering a health questionnaire truthfully.
Conversely, the employer does not have
to give any special preference to a person with a disability.
If another person applies for the same position and is better
qualified than you, there is nothing in the ADA that requires
an employer to give special preference to a person with a
Title 1 of the ADA also protects persons
who are working, but who find it difficult to do the job duties
as they are usually performed and require some form of accommodation.
The ADA requires an employer to provide “reasonable
accommodation.” It should be emphasized again that the
purpose of this portion of the law is to help a person with
a disability continue to work, not provide protection when
they can’t work at all.
What is “reasonable accommodation”
under the ADA? The law left the term intentionally vague because
what may be reasonable for an employer with 2,000 employees
may not be reasonable for an employer with 17 employees.
The term “reasonable accommodation”
is meant to include any modification or adjustment to a job
or the work environment that will enable a qualified applicant
or employee with a disability to perform the essential functions
of the job. It also includes adjustments to assure that a
qualified individual with a disability has rights and privileges
in employment equal to those of employees without disabilities.
Examples may include making existing facilities
readily accessible; restructuring a job; modifying work schedules;
acquiring or modifying equipment; providing qualified readers
or interpreters; or appropriately modifying examinations,
training, or other programs. Reasonable accommodation also
may include reassigning a current employee to a vacant position
for which the individual is qualified if the person is unable
to do the original job because of a disability even with accommodation,
although there is no obligation for the employer to search
for such a position.
However, an employer is not required to
make an accommodation if it would impose an undue hardship
on the operation of the business. Undue hardship is determined
on a case by case business. The difficulty and the expense
are considered along with the size, resources, nature, and
structure of the employer’s operation.
It is important to understand that an employer
is only required to provide reasonable accommodation for “known”
disabilities. In other words, to receive protection under
the ADA, you will need to advise your employer of your condition
and the need for accommodation. It is not possible to withhold
the nature of your medical condition from your employer and
still demand reasonable accommodation.
It is recommended that you disclose information
with a letter from your doctor. It is also recommended that
you personally deliver the letter to the highest level person
in Personnel or Human Resources with whom you are comfortable.
The letter should state your diagnosis
and generally review your symptoms. The doctor should clearly
state what limitations you have concerning the performance
of your job duties. It will help if your doctor “suggests”
specific accommodations that would accommodate your condition;
however, it is up to the employer to determine what accommodations
can be made for you.
While there are laws that provide
some protections for the person that is unable to continue
working, the Americans with Disabilities Act is focused on
helping a person with a disability continue his or her employment.
Confused about applying for disability?
[Jacques Chambers, CLU, and his company,
Chambers Benefits Consulting, have over 35 years of experience
in health, life and disability insurance and Social Security
disability benefits. For the past twelve years, he has been
assisting people with their rights, problems, and other issues
concerning benefits and disability. He can be reached at email@example.com
or through his website at: http://www.helpwithbenefits.com.]
Copyright August 2004– Hepatitis C
Support Project - All Rights Reserved. Permission to reprint
is granted and encouraged with credit to the Hepatitis C Support
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