Disabled individuals may have a number of protections and rights in the workplace. However, determining how and when to invoke those rights can often be challenging as individuals try to balance the restrictions imposed by their disability with their desire to continue being productive members of the workforce. Below Attorneys John Leppanen (who assists individuals with disability accommodations and discrimination) and Timothy P. Maynard (who assists individuals with Social Security, short-term, and long-term disability benefits claims) discuss some common questions they hear from disabled individuals in the workplace. As set forth below, the approach to determining what rights to invoke may vary greatly depending on the particular situation that a disabled employee is in. 

  • I have a disability that impacts my ability to work. However, my doctors think that I can continue to work with some minor adjustments to my workplace. Do I have any rights that will allow me to continue in my job?  

Attorney Leppanen: Yes. The Americans with Disabilities Act (ADA) defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This can include physical limitations – such as lifting, walking, driving, and the like – or mental limitations, as might affect an individual’s ability to concentrate at work, perform various tasks, and generally act as a productive employee for their employer. It does not necessarily mean that the person cannot work.  

When an individual employee suffers from a disability, it is often crucial that they have a workplace accommodation established so that they can continue to do their job. As interpreted by the Courts, the ADA and the corresponding Wisconsin Fair Employment Act (WFEA) require employers to engage in the ‘interactive process’ with disabled employees, such that both parties collaborate to find a suitable arrangement where possible. But the process is often complicated. As a preliminary matter, if a disabled individual needs a workplace accommodation, they should notify their employer accordingly, on paper, and with a clear statement of their conditions and limitations. Many employees have informal conversations with their managers that do not materialize into actual accommodation requests, and lead to confusion, discipline, and even separation from employment.  Here, it is important to have an established medical provider – whether that be a primary care physician, a specialist, or both. The medical care provider can and normally will certify the individual’s disability and communicate to the employer what the individual needs in order to do their job. This can take the form of extra break time, lifting restrictions, work environment modifications, or other limitations on what the individual is required to do while working. The range of potential accommodations is broad. 

Attorney Maynard: From a benefits perspective, it’s also worth noting that some accommodations could allow a disabled individual to continue working and also provide for short- and/or long-term disability benefits. For example, if an employer is able to accommodate a disabled individual’s need to reduce from full-time to part-time hours, that individual could also qualify for a partial disability benefits under their employer’s short- and/or long-term disability plans due to the loss of income caused by the reduced hours. As a result, it often makes sense to obtain a copy of the applicable short- and long-term benefits plan documents from an employer to determine if benefits could be available in a particular situation. 

  • I have been working with a disability but it is getting worse and I am no longer able to perform my job. What should I do?  

Attorney Maynard: This is a common scenario where individuals often make a mistake that could cost them disability benefits to which they may otherwise be entitled. In some circumstances, individuals will simply resign their position when their health deteriorates to the point that it is preventing them from successfully performing their job duties. However, if those individuals have short- and/or long-term disability benefits through their employer, it often makes more sense to seek medical leave and/or apply for those benefits instead of resigning. That helps to document that an individual’s inability to work is due to their disabling health conditions and can allow them to receive short- and/or long-term disability benefits even if they ultimately will not be able to return to work and their employment is terminated. Considering that many long-term disability insurance policies can pay benefits until a person reaches their Social Security Normal Retirement Age, simply resigning could mean losing out on years or even decades of benefits because an individual’s short- and long-term disability coverage can end at the time of resignation.  

  • I have a disability that is impacting my ability to work but have been working for my employer for less than a year. Does that impact my rights in the workplace?  

Attorney Maynard: This can be a tricky scenario when someone has short- and/or long-term disability insurance offered through their employer. That’s because many short- and long-term disability policies have Pre-existing Condition provisions that may impact whether recent hires or newly covered employees are eligible for benefits. In many circumstances, insurance companies will not pay benefits to an individual who becomes disabled in the first year of coverage under a policy due to a medical condition that was treated in a look back period (e.g., several months prior to an individual’s effective date of coverage under the insurance policy). If an individual is covered by a short- and/or long-term disability policy that has a pre-existing condition and their disabling condition meet the policies’ definition of a pre-existing condition, it may be best to first see if there are workplace accommodations that would allow them to continue working while continuing treatment for those disabilities. If that individual later needs to stop working due to their disabling conditions, the period of time worked with an accommodation may place them outside of the pre-existing condition provision’s time period and may eliminate a barrier to receiving short and/or long-term disability benefits that would have existed if they had applied earlier. However, individuals should be aware that some accommodations (e.g., reduced work hours or changed job duties) could change the amount of their prospective short- and/or long-term disability benefits or even their eligibility for such benefits in the first place.  

Attorney Leppanen: If you have been working for your employer for less than a year, then unfortunately you probably do not qualify for federal or Wisconsin Family and Medical Leave Act (FMLA). This means that if you do not qualify for short- and/or long-term disability, you cannot just take prolonged time off while you (and your doctor) figure things out. Instead, you must navigate the disability accommodation process, seeking to provide clarity as to what you can and cannot do, and of course having your doctor establish your limitations in writing. The good news is that there is no minimum time worked requirement under the ADA or the WFEA. Instead, upon receipt of the formal request for accommodation, the employer will make a determination as to whether it imposes an ‘undue hardship’ on the employer’s operations. For example, a delivery driver who presents a request for accommodation that would significantly reduce their time behind the wheel may be found to impose a hardship on the employer that simply cannot be accommodated. Conversely, a desk-based employee who asks for five-minute breaks every few hours can likely be accommodated without severely disrupting the employer – i.e., without imposing an ‘undue hardship.’ These are, of course, just examples. And indeed, much of disability accommodation law comes down to subjective judgments as to what does or does not cross the line into ‘undue hardship’ territory. Still, even if it is just your first day on the job, an employee with a disability is entitled to the interactive process.  

  • I have not been working due to my disability. Are there any disability benefits that could help provide a source of income to my household?   

Attorney Maynard: Typically, if someone is not employed (i.e., doesn’t have short- and/or long-term disability insurance provided by an employer), they have two other avenues for disability benefits: 1) Individual disability insurance policies; and 2) Social Security disability or supplemental security income benefits. Individual disability policies are provided by insurers directly to individuals that go through an application process, are approved, and pay the premiums for the insurance on their own. While these policies can be costly, they are typically beneficial to help ensure that disabled individuals can continue receiving income that is lost when a disability leaves them unable to work. However, individuals typically must have taken out an individual disability policy before their health becomes disabling. Otherwise, their disabling conditions may prevent insurers from approving their application and issuing an insurance policy. 

In contrast, Social Security benefits are available to help provide income to disabled individuals who meet specific criteria. Social Security Disability Insurance (SSDI) works like an insurance program in that coverage is usually based on an individual’s working and paying taxes into Social Security. Once an individual has enough quarters of coverage to qualify for SSDI, they can be eligible for SSDI benefits if they are disabled per Social Security’s rules and regulations. In addition, disabled individuals may qualify for Supplemental Security Income (SSI) if they meet certain needs-based criteria (even if they don’t qualify for SSDI benefits). However, it’s important to note that Social Security may have different definitions of what it means to be disabled than employer-provided or individual insurance policies. As a result, a person may not be disabled according to Social Security but still might be under an applicable insurance policy. Finally, disabled individuals should know that Social Security benefits may take months and even years before they are approved (if they are approved). Individual and group short- and long-term disability policies are often an important piece of maintaining some income while an individual’s Social Security claims are being decided. 

  • I have been working with a disability but I don’t feel like I’m being treated fairly by my employer as a result of my disability. Is there anything I can do?  

Attorney Leppanen: This is a common problem for people with disabilities and related accommodations who also sincerely want to continue to work. Frankly, this is also a common problem for people with disabilities who do not even request accommodation(s). If you feel that you are being treated unfairly due to your disability – for example, being disciplined more than other, nondisabled employees, or being targeted for criticism, including but not only based on things related to your disability – you may have a claim for disability discrimination under the ADA and the WFEA. In addition to asserting that accommodations pose an undue hardship on their operations, many employers will recognize an accommodation and then refuse to honor it, or will make up claims that a disabled employee is doing their job poorly when that is not truly the case. If you are eventually in a position where you need to demonstrate that this discrimination has occurred, it is important that you have a good recollection of how other, nondisabled employees were treated differently (and better) than you were. Many employers simply do not want to employ people with disabilities, but realize that sentiment is illegal. Still, subtle disability discrimination is real, and employers need not have made openly discriminatory statements, or have openly rejected clearly reasonable accommodation requests, in order to be in violation. While you may ultimately need to file a complaint of discrimination if the employer persists in its unfair treatment, you may also be able to navigate the process but spotting unfairness and addressing it, especially with the assistance of an attorney.  

  • How can I protect myself as a person with a disability in the workplace?  

As described above, disabled individuals often face difficult considerations in determining when to seek an accommodation versus requesting disability-related leave and benefits. In order to try and protect yourself, it often makes sense to speak to a qualified attorney in order to determine what is the best path forward under your individual circumstances. If you are dealing with a disability in the workplace and would like to discuss your rights, please contact us to set a up a consultation.  

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Timothy Maynard