Medical Condition Discrimination

Employment Discrimination on the Basis of a Medical Condition

It is illegal under both federal and state laws to discriminate against an employee based on his or her medical condition with regard to employment decisions. These decisions include hiring, firing, promoting, demoting, training and job assignments. Federal laws that protect against medical condition discrimination are the Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA).

The FMLA applies to all medical conditions of covered employers, requiring an employer to grant medical leave to an employee under specific circumstances. The ADA makes it unlawful for an employer to discriminate based on disability, which is defined as a mental or physical impairment that significantly restricts a major life function. Not all medical conditions are disabilities, and there are times when therapy or care for a medical condition will remove an employee’s impairment, but there are many circumstances when ADA does apply to a medical condition.

Under some circumstances, the Genetic Information Nondiscrimination Act (GINA) may also apply to medical discrimination cases. Some states also have enacted stronger protections against medical discrimination.

When Does FMLA Apply?

The FMLA only applies to employees who work at least 1,250 hours per year for companies that employ a minimum of 50 employees. If you work for a smaller company and suffer medical discrimination, you should explore your options under ADA, which applies to employers with a minimum of 15 employees.

Under FMLA, an employee who suffers from a medical condition or illness that renders him or her incapacitated can take 12 weeks of unpaid leave during any 12-month period. The leave can also be taken under other circumstances related to hospital care, such as childbirth or to take care of family responsibilities related to a spouse, child, or parent with a serious health condition.

You should consult a lawyer if your employer takes an adverse action against you when you come back from FMLA leave. Violations of FMLA may also exist if a supervisor says something hostile when you request leave, if a supervisor denies you leave by claiming your ailment is too minor, or if a supervisor discloses your private medical information or penalizes you for taking an unforeseen and sudden leave.

Unlike a number of other federal anti-discrimination laws that are enforced by the Equal Employment Opportunity Commission (EEOC), FMLA is administered by the Department of Labor. During the period of leave, the employee will continue to have benefits, and he or she is entitled to resume his or her job or an equivalent job with the employer after the leave. Additionally, a covered employer must provide an intermittent or reduced work schedule if an employee has a medical need. Under some circumstances, the employer may legally transfer the employee to an alternative position with equivalent pay and benefits that better suits the reduced schedule.

Employees have certain obligations under FMLA. For example, an employee with a medical condition must make reasonable efforts to avoid disrupting the workplace by scheduling foreseeable medical treatment. If medical leave is foreseeable, he or she must tell the employer 30 days in advance that he or she will need the leave. Employers can ask for a certification of medical needs and seek a second opinion to corroborate the employee’s need for leave.

Employers may not retaliate against an employee for filing a charge of discrimination or opposing discrimination. An employee can prove retaliation by showing he or she was a victim of a material adverse employment action as a result of exercising rights under FMLA.