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How do I file a claim with my employer under the Americans with Disabilities Act?”

That really depends on the particular employer. Usually, you want to start with Human Resources. You certainly want to start with your supervisor if your company isn’t large enough to have a Human Resources department. You may have to go to your superior’s boss, depending on how receptive your supervisor is to your request for a reasonable accommodation. Request for a reasonable accommodation can mean some time off. That is there’s a certain interaction there with the Family Medical Leave Act, which we’ve discussed in other broadcasts, where you have a certain number of days that you can take leave and you can use that leave intermittently and sometimes rescheduling or light duty are all things which are available under the Americans with Disabilities Act, and your company ought to engage in that collaborative process with you to make sure that you are getting the kind of accommodation that you need.

If you start hitting your head against a brick wall and the company isn’t doing the right thing, they’re not following the law, or you believe they’re not following the law, then you need to go to the EEOC, the Equal Employment Opportunity Commission, and file a complaint there, or go find an employment attorney who handles these types of cases and consult with that attorney. We talk to people all the time who are still employed and try to help them resolve it without escalating the problem any farther. Sometimes companies, if they haven’t had a whole lot of experience with the Americans with Disabilities Act, they just don’t understand what’s involved. They don’t understand their responsibility to engage in an interactive process. They don’t understand what a reasonable accommodation is. Sometimes they don’t understand that just because they are worried about a person’s ability to do their job based on their perception of what the downsides, for example, of a disability is. That doesn’t mean that they can then be paternalistic and take action in that way.

I had a client once who had MS, and all he wanted to do was work. He had to be carried to his workstation and carried away from his workstation, but he was otherwise able perform the job. A safety manager saw him and became concerned that he was a safety risk. Well, without any real reasonable probable cause, singling him out was discrimination because of the safety person’s perception of his disability. But he was otherwise able to perform the essential functions of his job and should not have been harassed about his physical condition.

So very frequently, we can engage in a process, or an attorney can engage in a process with the company, and through that process educate them what their responsibilities are and every frequently that can solve the problem, either for a time or indefinitely. Sometimes if you have a supervisor, however, who sees this not as an opportunity for the company to excel or for the employee to excel, but as a hassle, one more thing they have to do that they’re not getting paid for, then they can start to engage in retaliation and you really ought to nip that in the bud. You can’t be retaliated against for making these kinds of claims or reports or requests for an accommodation.

The law in this area is very complicated, and it really requires someone who not only knows the law but has had extensive experience in dealing with these kind of claims. So whether you go to the EEOC or not, you really should seek out an employment attorney who can help you navigate these waters. As I said many times, it’s simply a matter of educating the employer. Sometimes it’s a matter of calling the employer on practices that the employer knows are not proper, and once you get an attorney, then they snap into action. And sometimes you have to negotiate a severance agreement, an exit strategy, because the company would rather pay the worker off than do what’s right.

So we help folks with that all the time, and there are other attorney’s that’ll help you with that. My best advice on that is not to just endure it, but to take some action and stand up for yourself, because you do have rights. What the Americans with Disabilities Act aims to do is to provide everybody an even playing field of be productive and to enjoy the fruits of their labor.

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