Myths and Realities of the ADA

The Internet is indeed a mixed blessing. The good news is that there’s an amazing amount of information out there. The bad news is that there’s an amazing amount of information out there.
 
As an individual with multiple sclerosis, I have of course surfed the web, looking for answers. Once I learned how to separate the truthful and credible information from the wacky and even dangerous stuff, I learned a great deal.
 
Much the same can be said about the current confusion regarding the Americans with Disabilities Act (ADA), the landmark law that has literally changed the American landscape. In my years investigating discrimination cases for the State of Oregon, I encountered a lot of this misinformation and saw how it negatively affected both employers and employees, often pitting them against each other.
 
Because it is so important that everyone gets it right, I’ve given a couple of examples of some of the most common areas of confusion. In future columns, I’ll try to further separate fact from fiction.
 
 
MYTH:
If two people are equally qualified to perform a job, the employer must hire the one with the disability.
 
FACT:
The ADA does not require that an employer give preference to one applicant over another. The law simply requires that employers don’t discriminate against people because they have disabilities.
 
Part of nondiscrimination, however, is that if an employer can make changes in the way a job is performed, and this change allows the employee to perform their duties without causing undue hardship to the employer, the employer must make those changes.
 
EXAMPLE:
Judith and Jonathan both apply for a cashier’s position at the neighborhood drug store. Judith is more experienced, and the employer wishes to hire her. Because Judith has MS, she must sit down for at least 10 minutes every hour. There is room for a stool in the cashiering area, and Judith can perform her cashiering duties while sitting. If the employer does not hire Judith because of her MS, the employer has likely violated the ADA.
 

MYTH:
If an employee with a disability cannot do her job, the employer cannot fire her but must hire someone extra or make other employees do the work.
 
FACT:
As with anyone else, an individual with a disability does not have an automatic right to stay in a job unless she can actually perform it. But as with the above example on hiring, the employer may have to adjust allow the employee to perform the job.
 
EXAMPLE:
An office receptionist with a spinal deformity cannot sit for more than an hour or so at a time. It would probably be a reasonable accommodation for the employer to let him get up and stretch his legs for a few minutes every hour. This would allow him to do the job and would result in little or no cost to the employer. But if his condition worsened to the point where he often had to leave his desk in the middle of customer calls and there was no one available to replace him, it might become an undue hardship for the employer.
 
 
The ADA challenges both employers and employees to put fresh eyes on workplace tasks and determine whether they can be done in an effective (and possibly non-traditional) way. The law also requires that employers and employees work together to determine the best way for that to happen. The net result is often a workplace where everyone feels more respected.
 
For a great website that spells all this out in detail, go to https://askjan.org or read this Momentum Magazine article.
 

The National Multiple Sclerosis Society is proud to be a source of information on multiple sclerosis related topics. Unless otherwise indicated, the information provided is based on professional advice, published experience, and expert opinion. However, the information does not constitute medical or legal advice. For specific medical advice, consult a qualified physician. For specific legal advice, consult a qualified attorney
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Helen

Helen Russon

Helen Russon is an (inactive) attorney who teaches disability law and has investigated many civil rights cases with the Oregon Bureau of Labor and Industries. She has also written many articles on disability issues and done other volunteer work with her local chapter. As a person living with MS, Helen wants to share both her expertise and experience. She is careful to emphasize, however, that nothing she writes is intended to be legal advice. It is general information to help point readers in the right direction.

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    33 Comments

  • Pat Ahrendsen   Jul 18, 2019 11:14 AM
    Because of my MS I walk with walking sticks. A cane was making my back pain worse and a walker isn’t required yet. I am traveling at the end of the year, with a change of planes. TSA is saying NO EXCEPTIONS sticks have to be checked with baggage. If they lose my luggage I will not be able to walk or go anywhere bcz my sticks will be elsewhere. They won’t take a DR’s note or anything. While I plan to use assistance (wheelchair) to get thru the security & to my connection I still need my sticks. Is there anything about this that the ADA can help with?
  • Amber Olsen   Jul 18, 2019 11:27 AM
    I'm wondering if you know if there's any registration that's required to be considered a disabled person. I live in WA and have been diagnosed with MS for nearly 10 years, does that alone make me covered by ADA, or do I have to do something special to become an official "disabled" person?
  • Pat   Jul 18, 2019 11:40 AM
    As a hospice nurse with MS working for an organization for 12 years I was “separated from employment” because of my disability. The disability being that I have MS and sometimes used a cane. I contacted the EEOC and with them and my employment lawyer sued my former employers. It took three years but I won. Ended my career. The organization had no policy regarding disabled employees. I think it’s important to check out policies and compliance with the ADA.
  • Rob   Jul 18, 2019 11:42 AM
    I was diagnosed with MS over a decade ago, and to date I have not needed to disclose this fact to my employer (I fear that while I am a knowledge worker, the culture at my company and specifically the leadership, might begin treating me differently). I do walk with a limp which has slowly progressed over the years.

    There have been some cases where I have been asked to do business travel which I can manage but is getting more challenging. My question is how to know the right time to disclose. Am I protected once I disclose, and am I at risk because I have not disclosed?
  • Alyssa   Jul 18, 2019 11:48 AM
    Amber, I live in CA but looked up WA DMV placard information. It reads, “[if] Your ability to walk is severely limited due to an arthritic, neurological, or orthopedic condition.” You qualify for disabled parking for a neurological condition. I’ve had MS for 8 years. It took me several years to reach out for help in making daily life easier. I’m an elementary school teacher and adding additional mileage at the end of my day running errands could be exhausting. Having a placard allows me to continue my contributions to society while battling fatigue and minimizing exacerbations. I’m not sure if you were wanting more information on state disability? But those details seem more complicated based on diagnosis and your actual ability/disability.
  • Pat Kipf   Jul 18, 2019 12:21 PM
    Most ADA blogs and info have to do with work. How about more info along the lines of the public. Not just parking but access, hotels other public use areas. Example, twice in 30 days i had ADA hotel reservations, when i showed up someone had overroad my resv and rented room. Aside from complaining not much we can do. Can't even find lawyers to get involved.
  • Earl Woodard   Jul 18, 2019 12:27 PM
    I have been an insurance adjuster for 27 years. I was recently granted STD due to Cognitive issues. I did not have letters/write ups advising of potential firing, but there was a noticeable change in my work product. Would you suggest I retire from my position to keep all I have accumulated over the years, or should I look to move into a different job type! I have some time, considering All options.

    Thank You
  • mike niemi   Jul 18, 2019 12:48 PM
    I have been disabled since CP diagnois in 1965, however most symptons are mild, and only got on ssdi in 2009, I worked as a computer Operator from 1976 to 1989, I was self employed in programming for 14 more years. When I turned 40 and the awful reagan years on, I could not get any employment in the IT community and just did call centers. 18 months an employer gets to exploit you then makes irrational judgements to fire you, my last 5 'permanent' jobs were at or less than that. Saving said that, SSA sent me back to college to 'help' me get off of SSDI. However SSA rules to get people are really handcuffs. Employers dont bother with e-file, for undoc workers (not being racist but they dont). SGA means they will work hard to take back monies paid unless you know how to get on Provisional status until you get a hearing. The SSA staffer hearing it is NOT usually medically trained. Employers not only fire at will, but willful fire, legal or not. Thats why Gen Z live at home, able or not, we are more cogs than ever. There are NO jobs, besides MacDonalds, that possibly meet the low $1000 month extra income threshold, and SSA doesn't offer assistance like it says it will. I am glad I am now 62+ and not in the workforce, and better, not 18 and starting out. Businesses chant they want qualified workers, but the qualifications exceed an able bodied person. thank you.
  • Vicky   Jul 18, 2019 1:26 PM
    Earl, I've been an agent for 30 years, and my husband a general adjuster for 20+. When it becomes necessary, is managing other adjusters or reviewing/auditing files an option? Husband will need to consider in the future, not because of MS (that's me, PPMS) but because he's in his 50s and getting harder to field adjust in FL heat.
  • Vicky   Jul 18, 2019 1:36 PM
    Pat - I used to be able to get by with canes, when traveling. Never had a problem bringing on board a plane. I then got collapsible ones because they were easier to travel with, and once through the jetway on wheelchair didn't need because I could use the seats on plane for support and balance. Board first, disembark last. Maybe an option to sticks?
  • LISA HARRY   Jul 18, 2019 1:57 PM
    Hello, I was dianosed with MS in 2002. Told my employer I had it years after being hired because one could see it. First mistake I made with numbers ( I had cognitive issues after coming clean) my job was re-assigned to something else, lowered my job grade 2 levels, fast forward five years on June 21,2019 I was terminated after 15 years with the company due to out sourcing and my position was eliminated. MY Employer MADE SURE TO COVER THEIR BUTTS. I used a rollator at work and a cane. Applied for disability, I will try to seek employment we will if I get any bits.I am 52 years young.
  • Helen Russon   Jul 18, 2019 2:39 PM
    Hi, Pat. Thanks for your question.

    I walk with a cane, but I use a wheelchair to get on and off airplanes at the airport. The airlines have always let me keep my cane in my lap on my way to the plane and back, but they require that I stow it in the overhead compartment in the passenger area of the plane.They have never told me that I can't have my cane on my lap when I'm being transported in the wheelchair.

    This part of the law is not covered by the ADA, but by a separate law called the Airlines Accessibility Act. I would suggest you contact the U.S. Department of Transportation at https://www.transportation.gov/airconsumer/passengers-disabilities and ask them about this policy.

    Good luck!

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Mrs. McMahan   Jul 18, 2019 2:49 PM
    HI,

    I am handicap and has been working for my employer for about 17 years. I sometimes call in sick due to illness. I was on FMLA but now I have exhausted my sick and vacation time. I am one of the most reliable employees at the company and I know my job more than others. I am trying to build up my days worked to become eligible for FMLA again. I only have to work about 177 hours before I am once again eligible for FMLA.

    My question is: Can my employer fire me for being handicap (I ride a scooter for mobility) and missing days for being sick with a muscle illness? Am I protected under ADA?
  • Helen Russon  Jul 18, 2019 3:04 PM
    Hi Ambert! Thanks for your question.

    As far as the ADA is concerned, there is no special way to "register" as a person with a disability. If necessary, that issue would be investigated as part of any legal action you might bring. For more information, contact http:// www.ada.gov.

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Helen Russon   Jul 18, 2019 3:15 PM
    Hi, Rob! Thanks for your question.

    I, too, had a job that involved a lot of traveling and carrying seminar materials around. I know how exhausting that can be, especially if you have MS!

    As far as disclosing your condition to your employer, that is a very important decision that must be carefully thought out and discussed with your attorney. Although it's illegal for an employer to retaliate against someone who discloses a disability, we all know that there are ways that potentially unlawful actions can be disguised. On the other hand, putting your disability on record can put your employer on notice that you are legally protected and can benefit you down the line.

    Here is a link that will give you more information. Good luck!

    https://www.nationalmssociety.org/Living-Well-With-MS/Relationships/Disclosure

    NOTHING ON THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Helen Russon   Jul 18, 2019 3:33 PM
    Hi Pat! Thanks for your question.

    I agree with you that there is far too little information out there about disability rights not connected with employment. Below are a couple of links that should give you a lot of information about both public and private establishments open to the public.

    https://www.ada.gov/regs2010/titleII_2010/title_ii_primer.html

    https://www.ada.gov/ada_title_III.html

    Good luck!

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Helen Russon   Jul 18, 2019 3:54 PM
    Hi, Earl! Thanks for your question.

    It's good that you have some time to think through this, and that you are considering all your options. I would also recommend discussing this very carefully with an attorney. As you've indicated, there are potential risks and rewards with either action you take.

    Here is a link that will give you more information and things to think about.

    Good luck!

    https://www.nationalmssociety.org/Living-Well-With-MS/Work-and-Home/Employment

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Stephanie Sanchez   Jul 18, 2019 4:11 PM
    My neurologist wrote a letter decreasing my workload from 4 different classes to teach to 2. My principal did not comply because he said it was not possible. I ultimately did not have my contract renewed and wasnt retained. I didnt have money for a lawyer and went somewhere else for employment.
  • helen russon   Jul 18, 2019 4:12 PM
    Hi, Ms. McMahan! Thanks for your question.

    Your question is a very good and also very common one: If an employee is missing a lot of work because of MS or some other disability, is an employer still able to fire him/her? And how does the ADA relate to other laws that grant employees leave for illness, like the Family Medical Leave Act (FMLA)?

    There are answers to this, but they are quite complicated and I highly suggest talking this over with an attorney. Here is a link that will help you get started:

    https://adata.org/factsheet/work-leave

    Good luck!

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Judy A. Finelli   Jul 18, 2019 4:24 PM
    Believe me, people will have MS know everything you were talking about. That is NOT the problem! The problem is that employers simply are not interested in providing "reasonable accommodations" to a wheelchair user. The disabled are not so much discriminated against in the workspace. We disabled are underemployed. I put out 5000 job applications working with DOR. I have some part-time jobs from people who know my work. I was the artistic director of a respected circus company which is no longer around. I would welcome other jobs but where can I locate them?
  • Jodi   Jul 18, 2019 4:29 PM
    I’m thinking about getting an assistant dog. What hurdles do I have to go through and is it required for my company to allow me to use my assistance dog?
  • Jacqueline M Brooks-Garrett   Jul 19, 2019 8:17 AM
    Hi. What is that statute of limitations if you feel you were discriminated against as far as accommodations on your job and promotions when you qualified with a College Degree in the delis you were working.
  • Helen Russon   Jul 19, 2019 2:18 PM
    Hi, Jodi! Thanks for your question

    .I have attached a link that explains what a service dog is under the ADA, as well as the rules for both the dog owner and the employer, store employee or other person/entity with whom the dog comes in contact.

    Good luck!

    https://adata.org/publication/service-animals-booklet

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Helen Russon   Jul 19, 2019 2:31 PM
    Hi, Jaqueline! Thanks for your question.

    I have attached a link to the Equal Employment Opportunity Commission, which is the agency that investigates employment discrimination complaints under the ADA. This link also discusses deadlines in which to file a disability discrimination claim.

    Good luck!

    https://www.ada.gov/filing_eeoc_complaint.htm

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Pauline   Jul 19, 2019 5:21 PM
    Hi Helen.
    My gym, LA Fitness, refuses to allow me to bring in a person to help me (in & out of pool, etc) unless I pay membership for them too. If my helper is not using the pool or equipment, is this legal? Plus, although it'd usually be the same person helping me, I might want different people to help. It effectively does not allow me to use my membership when I'm having problems. The gym allows one to suspend membership (for a monthly reduced fee) if one tells them ahead of time that they won't be using the gym. That works if I don't want to go for months at a time; but that doesn't work out well for when I could & want to go, but need help. Is their a law about this? Thanks.
  • Helen Russon   Jul 20, 2019 1:14 PM
    Hi Pauline! Thanks for your question.

    The ADA applies to most private businesses that are open to the public, and this would likely include your fitness center.

    The ADA also requires that unless it would create an undue burden, those businesses must alter their policies to accommodate people with disabilities. You might want to talk to an attorney about approaching the fitness center and asking that they change their policies to allow your helper to accompany you into the center.

    Below is a link that explains all this in more detail.

    Good luck!
    https://www.ada.gov/regs2010/titleII_2010/title_ii_primer.html

    Good luck!

    NOTHING IN THIS WEBSITE IS INTENDED TO BE LEGAL ADVICE.
  • Karen Meyers   Jul 20, 2019 1:53 PM
    Thank you for these examples and information.
    I also, have MS.
  • helen russon   Jul 20, 2019 5:39 PM
    Hi Karen! Thanks for your email.

    Hang in there, and let me know if you have any questions or experiences you would like to share.

    Best,

    Helen
  • Jamie Maree   Jul 24, 2019 10:47 PM
    I have had MS since early 2014 and was able to do my job without any issues until I was attacked by my employer for almost 18 years and never once had any issues. Then in March 2018 I was attacked by the Publically owned entity because the companies illegal activities from around 20 years ago came out in public interest. The company had illegally installed a water line onto my property. Then the company manager used my disability of Multiple Sclerosis as a tactic of bribery and corruption. No one here in South Carolina understands the concept of the ADA and in my opinion could careless about individuals that have diseases or disabilities that we fight everyday and it appears that institutions that are supposed to help individuals with disability rights. Do you have any suggestions?
  • Helen Russon   Jul 30, 2019 10:21 AM
    Hi, James! Thanks for your email.

    Here's a link that should have resources in your part of the country. I would also get some legal advice to help wade through all of these issues.

    Good luck!

    https://adata.org/find-your-region
  • Corbin   Jul 31, 2019 9:49 AM
    Pat - I know exactly where you’re coming from. I use collapsing trekking poles and travel regularly. The key to getting your needed devices through security is to let TSA know that they are for “mobility” reasons. That’s the magic word. Once you use that word with them, in my experience, their entire demeanor changes and they become very helpful while still performing their responsibilities.
  • helen russon   Jul 31, 2019 10:49 AM
    Hi Corbin! Thanks for your email.

    I agree that it's important to use the words, "mobility device" when you're talking to the airline employees.

    Those are indeed "magic words" and can help both of you get what you want: you want to use your walking sticks and they don't want any trouble!
  • John Wenger   Aug 30, 2019 12:59 PM
    It is very difficult for employers and employees to reach the happy mix that benefits each party. I am retired now but my former employer benefited from my knowledge and my disability because they were a large government contractor. Giving me employment helped their position as contractor who was compliant with ADA. I know if my unique talents didn’t help them I would be gone. I managed to get in ten years and earn retirement from that company.
    So hard for my fellow MS peers and others with disabilities.