The following article was published in the Summer 1993 issue of HEART OF AMERICA NEWS, the newsletter of the National Chronic Fatigue Syndrome Assoc.
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THE AMERICANS WITH DISABILITIES ACT: CFS AND EMPLOYMENT

by Michelle L. Banks, M.S. ed.

"IT IS NOT A QUESTION OF WHETHER OR NOT YOU CAN DO THE JOB, BUT WHETHER OR NOT THE JOB IS ACCESSIBLE TO YOU AND YOUR CO-WORKERS RECEPTIVE TO YOU"


AN INVISIBLE DISABILITY

People with CFS face a tremendous economic challenge. Some persons with CFS are forced into the nightmare of red tape seeking financial assistance from the federal government. Others are trying to remain economically in- dependent by seeking new employment, remaining in present positions or attempting to return to work. These persons with CFS may benefit from some accommodation from their employers. But, CFS may be an invisible disability. There may be no readily apparent need for accommodation. This may cause a misunderstanding in the work place. A person with CFS may be perceived as being: lazy, unmotivated or antisocial. This may create a stressful work environment and lower the person with CFS' chances for success.

WHAT IS THE AMERICANS WITH DISABILITIES ACT (ADA)?

The ADA is a federal anti-discrimination statute designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities available to non-disabled people.

There are five titles under the ADA. Title I outlaws job discrimination by: all state and local employers after January 26, 1992 and with 15 employees or more after July 26, 1994.

IS CFS A DISABILITY?

Persons with CFS may be considered disabled and protected under the ADA. The ADA definition of a "DISABILITY" is:

  1. a "MAJOR PHYSICAL" or "MENTAL IMPAIRMENT" that "SUBSTANTIALLY LIMITS" a "MAJOR LIFE ACTIVITY."

    or

  2. having a "RECORD" of an impairment, such as educational, medical or employment records.

    or

  3. being "REGARDED" as having such an impairment.

WHAT DOES "SUBSTANTIALLY LIMITS A MAJOR LIFE ACTIVITY" MEAN?

  1. "SUBSTANTIALLY LIMITS" is defined as being unable to perform a "MAJOR LIVE ACTIVITY" as an average person would.
  2. "MAJOR LIFE ACTIVITIES" may include: breathing, walking, sitting, standing, lifting, reaching, performing manual tasks, caring for oneself, learning, working, etc.

A person with CFS would have to meet one of the "DISABILITY" criteria to be considered disabled under the ADA. There is no legislative list of specific conditions that would constitute a disability. This determination is based on the disabling effect that CFS has had on your ability to perform "MAJOR LIFE ACTIVITIES."

For example, a person with CFS may have a physical impairment because it substantially limits his/her ability to stand, walk or even breathe, as an average person is able to.

The second and third parts of the definition may assist those persons with CFS re-entering the job market. A person with CFS who has recovered or is in remission may be protected by having a history of an impairment in medical/ employment records.

WHAT IS A "QUALIFIED INDIVIDUAL?"

To be covered under the ADA, the individual must meet one of the "DISABILITY" criteria. He/she must be qualified to perform the "ESSENTIAL FUNCTIONS" of the job with or without b>"REASONABLE ACCOMMODATION."

  1. A "QUALIFIED INDIVIDUAL WITH A DISABILITY" must satisfy the requirements of the job. These qualifications may include: educational background, job experience, licenses, etc.
  2. "QUALIFIED INDIVIDUAL WITH A DISABILITY" must be able to perform the "ESSENTIAL FUNCTIONS" of the job with or without "REASONABLE ACCOMMODATION."

The "ESSENTIAL FUNCTIONS" are the fundamental duties/tasks of the job. They are not marginal or incidental tasks that are not directly related to the job.

WHAT IS "REASONABLE ACCOMMODATION?"

"REASONABLE ACCOMMODATION" is any change that an employer is able to make which allows an "OTHERWISE QUALIFIED" applicant/employee to perform the "ESSENTIAL FUNCTIONS" of the job and share the benefits that non-disabled workers have. Some examples are:

  1. Providing or modifying equipment.
  2. Job restructuring or re-assignment.
  3. Modification of a work schedule or a part-time schedule.
  4. Adjusting or modifying exams, materials or policies.
  5. Allowed use of accrued paid or unpaid leave.
  6. Making the workplace accessible to/usable by the disabled.

According to the ADA Handbook, the best way to identify a possible accommodation is to have an informal consultation with the present or future employer.

AM I PROTECTED UNDER THE ADA?

To be covered under the ADA, you must be a "QUALIFIED INDIVIDUAL WITH A DISABILITY" and able to perform the "ESSENTIAL FUNCTIONS" of the job with or without "REASONABLE ACCOMMODATION." This is not an affirmative action program. An employer may hire the best qualified applicant without discriminating against a qualified person with disability. These are broad legal terms that are left up to interpretation. Because of this, the attorneys with whom I consulted stated that each case must be reviewed on an individual basis.

ADA RESOURCES

  1. PRESIDENT'S COMMITTEE ON EMPLOYMENT OF PEOPLE WITH DISABILITIES-(PCEPD)
    1331 F. Street, NW
    Washington, DC 20004-1106
    (202) 376-6200
    *Advocacy and public awareness in fostering job opportunities for individuals with disabilities*

  2. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION-(EEOC)
    1801 L. Street, NW
    Washington, DC 20507
    (202) 663-4900
    *Specific information about ADA requirements affecting employment*

  3. DEPARTMENT OF EDUCATION-OFFICE FOR CIVIL RIGHTS
    330 C. Street, SW
    Washington, DC 20202
    (202) 732-1502
    *Non-discrimination in employment and education*

Web page design by Bill Jackson, 1996.
Any comments? Send them to Bill Jackson at cfsdays@yahoo.com

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