Podcast: Know Your Workplace Rights

 

Transcript

For release 7/30/24

 

PODCAST OPEN:           

You’re listening to the Live Yes! With Arthritis podcast, created by the Arthritis Foundation to help people with arthritis — and the people who love them — live their best lives. This podcast and other life-changing resources are made possible by gifts from donors like you. If you’re dealing with chronic pain, this podcast is for you. You may have arthritis, but it doesn’t have you. Here, learn how you can take control of arthritis with tips and ideas from our hosts and guest experts.

 

MUSIC BRIDGE

 

Jamie Nicole:

Hello there. Welcome to the Live Yes! With Arthritis podcast. My name is Jamie Nicole, and I am your guest host for this episode. I personally have been navigating the challenges of osteoarthritis since my 20s, and just last year I received an additional diagnosis of rheumatoid arthritis, which I have been learning to navigate. These experiences have given me a deep understanding of the complexities and the daily hurdles faced by those living with arthritis. And those complexities are what led me to become a certified health coach and also a patient and health equity advocate.

 

Today we're talking about patients’ rights in the workplace. Arthritis is a leading cause of disability in the U.S., meaning that it significantly limits at least one activity. In many cases that includes work activities like typing, standing, sitting for extended periods of time or other physical activities in general. But because arthritis is often invisible, your co-workers and your boss might not know that you're struggling.

 

Joining me today is Laura Bouslaugh, an expert in civil rights and equal employment opportunity, to discuss some of the obstacles people with arthritis face in work situations and what recourse and solutions they have. Laura, welcome. Could you tell us a little bit about yourself?

 

Laura Bouslaugh:

Well, Jamie, thanks for having me as a guest today. As you know, many people want and need to continue to work after they have a condition diagnosed like arthritis, but they don't know their rights to accommodation or how to go about the process of requesting accommodations. It doesn't help that many people in supervisor roles are not well-educated on the process either. This puts unnecessary roadblocks in the way, causing delays at best and discriminatory terminations at worst.

 

I was diagnosed with juvenile idiopathic arthritis at the age of 16, but my symptoms started when I was 5 years old. My mother had multiple sclerosis. And she had knowledge of Section 504 of the Rehabilitation Act as this was before the ADA. So, my background in disability rights goes back to the late 1980s. I've worked in the disability services field since 1993.

 

I've worked for a community-based housing program for adults with disabilities. I worked for a center for independent living where I headed up the advocacy services, and then as an equal employment opportunity officer for a local workforce board that worked with the local U.S. job centers. And for the last seven years, I've worked as a civil rights specialist with the State of Missouri Department of Transportation, where I investigate ADA complaints with transit providers and assist our engineers with ADA access.

 

Jamie Nicole:

As one who has been dealing with chronic health issues and have been on both sides, as a supervisor and an employee, I know how important it is to be educated, both when assisting your employees going through the process and also going through the process yourself. What are some of the most common work-related obstacles that you hear about from your clients with arthritis-related conditions?

 

Laura Bouslaugh:

Just getting the time off to schedule their appointments. For a lot of people, it's just basic accommodations, such as sitting as the need on the job. They'll have employers that expect them to stand the entire time. And being able to either work remotely or work from home as needed. And really that intermittent leave that's covered by the Family Medical Leave Act.

 

Jamie Nicole:

What kinds of environments do you hear complaints about the most?

 

Laura Bouslaugh:

I think the biggest areas that have problems are retail and food service. I think the lower-paying jobs, because they tend to have supervisors who have the least amount of training. Leave is usually a big complaint, and it transcends all types of workplaces.

 

Jamie Nicole:

Do you have to disclose your condition to your supervisor? And if so, when is the best time to do so?

 

Laura Bouslaugh:

There is no requirement that you have to disclose your disability. What I do recommend is that, if you come to the point where you need to request an accommodation, you're going to have to disclose. Don't disclose until you've been hired and you start working and you find you need some accommodations.

 

Jamie Nicole:

What are the protections when it comes to disclosure?

 

Laura Bouslaugh:

First of all, disclosure is what gives you legal protections. If you don't disclose that you're having any kind of a health issue, then that really doesn't give you anything to fall back on.

 

The key thing is that you have, where your doctor can back up, that you have some health-related issues going on, and you need an accommodation because you are struggling to do X, Y or Z. So, if, for example, I'm having difficulty standing for long periods of time, I need an accommodation to sit for part of my shift or be able to sit and stand and to have a stool as I need to use it. That's tying it to the issue that you're having with your musculoskeletal system.

 

Jamie Nicole:

It often takes a long time to get a diagnosis. You can go four to five years having these symptoms and not get a diagnosis.

 

PROMO:

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Jamie Nicole:

Can you tell us a little bit about reasonable accommodations? And what kinds of things can count as a reasonable accommodation?

 

Laura Bouslaugh:

Well, a reasonable accommodation is a small change, usually a small change, but it's a change to either a policy or a procedure. Or it's providing a piece of assistive technology, which could be anything from a stool to computer software that will enable a person with a disability to do the job efficiently. Maybe a sit-and-stand desk or those sorts of things, so that I can do my job just like the person next to me. What it does is it levels the playing field.

 

In order to qualify for a reasonable accommodation, the person with a disability has to be qualified for the job. So, just like if the job requires a bachelor's degree and five years of experience, and I have a bachelor's degree and five years of experience, I'm a qualified individual for that job. So, I qualify for the reasonable accommodations because I have a condition that impacts a major life activity. Anything from dressing oneself for working, your ability to read, your ability to drive yourself. That can be a major life activity.

 

But the Americans with Disabilities Amendments Act lists conditions that impact major life functions, such as arthritis impacting the musculoskeletal system or the autoimmune system. They impact the bodily system. So, that's what qualifies as a major life impact. And that's what qualifies people with disabilities under the definition of disability.

 

Jamie Nicole:

One of the things that I went through, and it may be a little bit different because I was working for the government at the time, is that after we went through all of that, the next step was to see if there was another job that I could do. Is that another option as well?

 

Laura Bouslaugh:

Because you were working a government job, you were covered by section 504 of the Rehabilitation Act and not the ADA. Because it's a government function. I work for state government, so I have the same thing. Government work is really a good thing because they go through more actions to accommodate someone, because there's federal funding involved. So, there's more mandates involved.

 

So, that is a reasonable accommodation. It's not, per se, required. That would be a requirement under the Family Medical Leave Act. Where, if someone had to take their 12 weeks that are allotted to them of unpaid leave, and then they returned to the job and their position wasn't available any longer, then they have to find you another position.

 

So, those are two different laws that were working in your advantage if you wanted that. Hopefully your HR is a really good place and is going to work with you and put you in another position. But that is not required under the ADA.

 

Jamie Nicole:

We have not talked about the process for requesting reasonable accommodation. Can you walk through that a little bit with us?

 

Laura Bouslaugh:

If you need an accommodation, you make a request. You can make it to your supervisor. Some supervisors, like I said earlier, are not very well-educated. So, you go work with HR, because they are the ones who are well versed in this. I recommend using email, because then you can document what has been requested, and it creates that record.

 

It is a collaborative process between an employer and the employee, and they can, and usually do, ask for a doctor to verify your need for accommodation. If you want the accommodations, you're going to have to get your letter from your doctor. I do not recommend giving them full access to your medical records. All they need is a statement from your doctor. You let your employer know what tasks you need to have accommodated, and they can suggest ways that they can accommodate you.

 

They make a recommendation, and you can say, "Well, I think that might work, but that one won't. Can we try this one?" So, try the one that you think will work. If it doesn't work, you then come back and you tell them, "Hey, that didn't work for me. Can we try something else?"

 

Reasonable, when it’s come up in the courts, has been very difficult for employers to weasel out of. They may balk at something that’s going to cost them $500, but the courts will say, “Really, $500, that’s nothing.”

 

Jamie Nicole:

What's considered unreasonable if we're talking about reasonable accommodation? And does that vary based on, one, the type of company that you work for, and two, the size of the company?

 

Laura Bouslaugh:

If a company has fewer than 15 employees, they do not have to give accommodations. So, that's important to know if you work for a very small company. Hopefully, they're going to do what's right, but they don't have to.

 

Jamie Nicole:

When you're struggling with those symptoms and not able to do your job, at least knowing that you have the option of getting a reasonable accommodation is so important.

 

With autoimmune forms of arthritis, which I also have, people can have good days and they can have bad days. Days when they feel just fine, or days when they wake up the next morning exhausted and in pain. It's hard for co-workers and supervisors who may think you're faking it, especially because they cannot see the symptoms. Do you have any advice for dealing with these types of situations?

 

Laura Bouslaugh:

I have juvenile arthritis, so I know what it's like to deal with that transient nature of it. My daughter also has juvenile arthritis, and she's young, not quite 25. I personally have this intrinsic thing where I feel like I have to prove myself, but that's me and everybody's going to be different. So, I can't speak for other people.

 

Jamie Nicole:

What I've found most with people with autoimmune disease is that they are the most type-A personalities that I've ever seen: driven, go-getters, stressful drives, because they do want to excel at everything that they do.

 

So, the next question is about not being able to do your job well. It takes a big emotional toll. Give us some advice on not just getting through the process emotionally, but how to deal with, you know, loss of self, loss of your job, loss of your identity, if your identity was somewhat tied to your job.

 

Laura Bouslaugh:

Oh, goodness. I will say that for me personally, during the COVID lockdown, I really struggled with my mental health because I was working from home full-time. I am not a work-from-home personality. I need that collaboration at work. And I struggled. I needed my workstation adapted for me. They came in, they did everything. All I could think of is, “Really, I have to go to this extent just to be able to work? And is it worth it?” I realized that, for my mental health, it was worth it.

 

But it's going to be different for everybody in their different situations. It's hard enough to struggle with the diagnosis, let alone, “OK, I have a diagnosis, but how do I keep working because I really need this job and I need this insurance, and my family needs my income.” And it's hard.

 

PROMO:

The Arthritis Foundation’s free Arthritis@Work program can help employees challenged by arthritis increase their productivity. Employers, check out our free program. And employees, let your workplace know we’re here to help. Explore arthritis.org/at work.

 

Laura Bouslaugh:

A lot of employers have employee assistance programs. A lot of them have mental health coverage through their health insurance. So, I really encourage people to use resources like that, because it's going to help you grow as a person, but help you manage all those different emotions of a diagnosis and life-changing and work-changing, and family-changing. And that. Also something to check into is if your employer has an employee resource group for employees with disabilities.

 

Jamie Nicole:

Having that sense of community. And so, I encourage anyone, if you're having difficulty with your job, looking to finding the government job, finding another place that you can go where you can still utilize your skills and get the accommodations that you need.

 

So, what about people who believe they're being passed over for promotions or raises because they have to take time off to get accommodation for their arthritis?

 

Laura Bouslaugh:

That could actually be considered an active retaliation, which is illegal under the ADA, and it's protected by the Equal Employment Opportunity Commission. Someone who would have that happen could go the route of filing a complaint with the EEOC or with an employment attorney. I mean, that's just as much an issue as if someone is terminated due to their medical condition.

 

Jamie Nicole:

And that also goes back to what you mentioned earlier about making sure that you have a paper trail. I used to always do a little follow-up with an email even if it was a conversation. “Per our conversation, this is what you said, and this is what the outcome is.” So, you can always have that paper trail, and no one can ever say that you never had that particular conversation.

 

Laura Bouslaugh:

Oh, most definitely. That's why it's so important to keep documentation of all employment-related issues, performance evaluations. If you're disciplined about something, communications, you always follow up phone calls with an email. “As we discussed on the telephone today, you said this, I said this, this is what the solution or accommodation that was…” Don't leave stuff like that on your work computer only, BCC your own personal email so that you have a copy of that trail.

 

Jamie Nicole:

If someone loses their job because they can no longer do it, because of their arthritis, what are their options?

 

Laura Bouslaugh:

What I recommend is that you go through the process of workplace accommodations. You try an adapted schedule, you try anything that is going to let you continue to do some work. If you're not able to meet the expectations because you just physically can't, keep documentation of everything. You need to document how your ability to work has changed over time. You want to have a paper trail that shows that you have done everything possible to continue working.

 

If you have to go the Social Security Disability Income route, you want to apply as soon as you are eligible after you stop working to get the most out of your work credit and the highest SSDI payment possible. You want to apply as soon as you're eligible. If you get denied, appeal, because it goes back to your original file date. That's just something that a lot of people aren't aware with Social Security Disability Insurance.

 

Jamie Nicole:

If I have a work-at-home accommodation, and my boss feels as though I'm not doing my job up to par, but I think that I am…

 

Laura Bouslaugh:

If they say that they don't think you're doing your job well enough, but all your documentation shows that you are, that could be a discrimination. If you don't document it, it didn't happen.

 

Keep all of your job performance reviews. Keep any email that's like a pat on the back. “You did a good job on this.” CC, you know, blind CC, and send it to your personal email. You can file a complaint with the EEOC. Or you could talk to an employment attorney and see what they think. A lot of employment attorneys will do contingency basis, which means they get a percentage of any settlement, and they don't get paid unless you win. So, you don't have to pay anything upfront.

 

Jamie Nicole:

If you don't have a computer, make sure that you're writing it down and then going home and sending an email or some type of follow-up. Document what's been said and what's been done along in this process. Under what circumstances could I file for disability compensation due to my arthritis?

 

Laura Bouslaugh:

You could go to, like, vocational rehabilitation and talk to them and say, "Hey, I'm really struggling in my job because of my arthritis. Can you help me try to see if maybe there's another career that I might be able to do better with my condition?" Because that's what they're there for.

 

There's an office for every state. If you just Google “vocational rehabilitation” and your state name, it'll come up. And you can find and make an appointment and talk with one of their counselors.

 

Jamie Nicole:

Is there a difference between when you're considering disability and qualifying for disability? Not being able to do that job versus not being able to do any job? Is there a consideration for that when you are applying for compensation?

 

Laura Bouslaugh:

The key thing is: If you can work, then they are not as likely to approve you. They can send you for training and you can try. But if you try and it doesn't work for you, all that does is that gives you more documentation of the measures that you have taken and would qualify you even more.

 

Jamie Nicole:

This has been such an eye-opening conversation even for myself. Oftentimes, it's not knowing the options that we have and the rights that we have that puts more stress on us and exacerbates the symptoms that we have. Thank you so much for sharing this information.

 

For each podcast episode, we post a question on social media to get input from people living with arthritis. And for this episode, we asked: What is the single biggest hurdle you faced in the workplace due to your arthritis? And we have a couple of responses. In one we have: "Picking a career at all. I was diagnosed with JRA at 13, so I've always had to consider what jobs are and are not realistic for my body. I chose teaching yoga. It keeps my body moving and allows me to set my own schedule and connects me with others seeking relief from their life with chronic pain." So, she's giving back as well.

 

Laura Bouslaugh:

Wow.

 

Jamie Nicole:

And I think that kind of goes back to what we were talking about earlier, about making sure that you choose a job. Are you going to be able to do that for an extended period of time?

 

Laura Bouslaugh:

I was actually just this week, last weekend, at the Juvenile Arthritis Family Summit. And I got to address the young adult groups. We know we have this diagnosis when we're young. So, we can plan ahead and choose a career that we can do. Whether we're struggling physically, we can either work from home or work at an office location.

 

Jamie Nicole:

Definitely. And it kind of ties into the next one: “I've been refused accommodation for a hybrid schedule. Even if my doctor requested it for me on the doctor's note I presented to my employer, they even terminated me while on short-term disability.” Is that possible to get terminated while you're on short-term disability?

 

Laura Bouslaugh:

Well, it's possible, but it's not very legal.

 

Jamie Nicole:

Yeah. (laughter) Well, that was my point.

 

Laura Bouslaugh:

I mean, what did COVID lockdown show us? It showed us that working from home is completely possible, that people can be accommodated, especially people with disabilities. More people with disabilities went to work during the COVID lockdown than had previously been working because they could work from home.

 

I'm hoping she's within a good six months of that happening, or he, they might want to talk to an employment attorney about that, because there's some major red flags there.

 

PROMO:

To learn even more about workplace rights, plus ergonomic solutions to relieve joints and make tasks easier, be sure to view our workplace webinar. It’s available on demand at arthritis.org/workplace-webinar.

 

Jamie Nicole:

So, to wrap up, we'll both give the top three takeaways that you have from this conversation that we're having today.

 

Laura Bouslaugh:

What I would like people to take away from this is to know their rights and responsibilities. To learn the interactive accommodations process. And the biggest thing that I want people to know is that they're not alone in this. And there are resources. And if they don't remember anything of what I said today, I want them to remember the website for the job accommodations network. It is askjan.org.

 

So, it's askjan.org. They have their conditions listed A to Z of accommodations that go with those conditions. And they have arthritis right there at the top. But they have amazing resources. You can call them and talk to them, or email them, or use their chat function and ask them confidential questions. So, askjan.org. If you don't remember anything I said, that's what I want you to remember.

 

Jamie Nicole:

For my three takeaways: You took my first one, which was know your rights. Because if you don’t know you have them, you can't properly advocate for yourself, for you to be able to do your job successfully. The next one was the documentation and making sure that you document everything regarding your health. And then also, just being proactive. Had I known then what I know now, I would've been more proactive in getting the process started. And it wouldn't have been such a stressful and burdensome process.

 

Thank you so much, Laura, for joining us today. This has been an awesome episode. Even if you thought you knew a little bit about reasonable accommodations and patients' rights, I hope that you got some extra nuggets that you can take away for your own use and to benefit others. Thank you. And take care.

 

PODCAST CLOSE:

The Live Yes! With Arthritis podcast is independently produced by the Arthritis Foundation. Gifts from people like you make our podcast and other life-changing resources possible. You can donate at arthritis.org/donate. This podcast aims to help people living with arthritis and chronic pain live their best life. For a transcript and show notes, go to arthritis.org/podcast. Subscribe, rate and review us wherever you get your podcasts. If you subscribe through Spotify, leave a comment on their platform, letting us know what you think about this episode. And stay in touch