The Law Office of Robert Wiley, P.C. represents individuals and groups of individuals who believe that they have been discriminated against because of their disability. Often disability discrimination falls under one of the following situations:

• The employer believes that a disabled employee cannot perform a job, even though the employee is qualified and able.
• The employer refuses to make reasonable accommodations for the disabled employee.
• The employer or a supervisor begins treating an employee differently after the disclosure of a disability such as HIV, diabetes, cancer, or epilepsy.

Please note, in 2008 a new law was passed greatly strengthening the Americans with Disabilities Act. If you believe you have been discriminated against because of your disability, please submit your case for review.

Americans with Disabilities Act of 1990 (the ADA) as well as state laws protect individuals against disability discrimination. Certain government workers are covered by the Rehabilitation Act of 1973, which basically is the same as the ADA.

The technical definition of a person with a disability is someone who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

Prior to 2008, some Courts found that individuals with HIV/AIDS, epilepsy, or diabetes were not considered as disabled! Congress has fixed that loophole with an amendment to the ADA. Now, people with HIV/AIDS, epilepsy, diabetes, cancer, and a host of other disabilities, are covered under the Act.

The ADA has four main components: (1) requirements for maintaining medical records and requiring medical testing, (2) an employer must reasonably accommodate disabilities, (3) an employer may not discriminate against an individual with a disability, and (4) an employer may not retaliate against someone who opposes discrimination of participates in protected activity.

MEDICAL RECORDS AND TESTING

If an employer has your medical records, the employer must maintain them separately from other employment records and generally should keep them confidential. The ADA requirement is similar to the requirements of HIPAA, which applies to medical providers.

An employer is limited in how it may use medical records or conduct medical testing. The two primary rules are:

• Employers may not ask job applicants about medical information or require a physical examination prior to offering employment. After employment is offered, an employer can only ask for a medical examination if it is required of all employees holding similar jobs.
• If you are turned down for work based on the results of a medical examination, the employer must prove that it is physically impossible for you to do the work required.

REASONABLE ACCOMMODATION

An employer must provide a reasonable accommodation if it would allow you to perform the essential functions of your job. The following are some of the things that may be a reasonable accommodation:

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
• Job restructuring, modifying work schedules, reassignment to a vacant position;
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is expected to work with you to find the best solution for you and the company that would allow you to do your job.

Sometimes taking leave is a reasonable accommodation. The Family Medical Leave Act (FMLA) gives many employees up to twelve weeks of unpaid leave. This leave could be taken incrementally, including in the form of half days, coming to work later than normal, or leaving earlier. Taken a few hours at a time, twelve weeks can stretch out for a long time. An employee whose FMLA leave request is denied may have both a violation of the FMLA and the ADA.

DISCRIMINATION

An employer cannot discriminate against an employee because of the employee’s disability. This includes discrimination in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.

Discrimination can take the form of obvious bias, such as a supervisor who avoids an employee with HIV. Discrimination can also take the form of improper stereotypes, such as an employee cannot be in law enforcement and take insulin injections for diabetes.

Regardless of the form it take, employment discrimination based on disability is illegal.

RETALIATION

It is against the law for an employer to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

If you believe you have been discriminated against because of your age, please submit your case for review.