There are two major laws to make sure that anyone who has a disability or who is dealing with a health crisis is not discriminated against. They are the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). Listed below are the things you must know in order to understand and be able to deal with job discrimination. Visit the U.S. Equal Employment Opportunity Commission (EEOC) website, the U.S. Department of Labor website, or both for up-to-date information. Talking with a lawyer who knows disability law can help to make sure you have a valid discrimination concern.

Have a good understanding of what qualifies as discrimination or ADA violations and other terms and conditions of a job.

• Disability. The ADA defines disability as one of the following:
  • A physical or mental impairment that mainly limits one or more of the major life activities of such individual.
  • A record of such an impairment.
  • Being regarded as having such an impairment.

The ADA presents many challenges for both an employee and employers.

Before bringing a claim under the ADA and other discrimination laws, it's important to understand that employees often may have to give up rights and benefits under other laws. This is because to benefit from these other laws, such as Social Security Disability, a person must have a disability that keeps them from being able to work. But to benefit from the ADA, a person who has a disability must still be able to work.

Disability also has different meanings for other organizations. These include the Social Security Administration and health insurance companies. See your insurance company's policy for its definition of disability. Contact your local Social Security office or visit the Social Security website to see how the Social Security Administration defines disability.

Under Title VII of the Civil Rights Act of 1964, the ADA, and the Age Discrimination in Employment Act (ADEA) of 1967, it is illegal to discriminate in any aspect of a job. This includes:

• Hiring and firing
• Pay, assignment, or classification of employees
• Transfer, promotion, layoff, or recall
• Job advertisements
• Recruitment
• Testing
• Use of company facilities
• Training and apprenticeship programs
• Fringe benefits

These laws address:

• Harassment on the basis of ancestry, color, religion, sex, national origin, disability, or age.
• Taking revenge against a person for filing a charge of discrimination, taking part in an investigation, or opposing discriminatory practices.
• Job decisions based on stereotypes or assumptions about people of a certain sex, ancestry, age, religion, or ethnic group or people with disabilities. An employer also can't deny job opportunities to a person because of marriage to, or association with, a person of a certain ancestry, religion, or national origin or a person with a disability. Title VII also bars discrimination against someone who attends a school or place of worship associated with a certain ancestry, ethnic background, or religion.
• The required posting of notices to all employees telling them their rights under the laws that the EEOC enforces and their right to be free from retaliation. These notices must be available, as needed, to people with visual or other disabilities that affect reading.

Title VII and the ADA cover:

• All private employers.
• State and local governments.
• Educational institutions that employ 15 or more people.
• Private and public job agencies.
• Labor groups.
• Joint labor management committees that control apprenticeship and training.

The ADEA covers:

• All private employers with 20 or more employees.
• State and local governments (including school districts).
• Job agencies.
• Labor groups.

An overview of the FMLA can be found at the FMLA website.

A covered employer must grant an eligible employee up to a total of 12 weeks of unpaid leave during any 12-month period:

• For the birth and care of the newborn child of the employee.
• For placement with the employee of a son or daughter for adoption or foster care.
• To care for a spouse, child, or parent who has a serious health condition.
• To take medical leave when the employee can't work because of a serious health condition.

The FMLA, unlike the ADA, addresses permanent illness or injuries and temporary illnesses or injuries suffered not just by employees. They can also be suffered by the employee's family.

Spouses who work for the same employer jointly have a right to a combined total of 12 weeks of family leave:

• For the birth and care of the newborn child.
• For the placement of a child for adoption or foster care.
• To care for a parent who has a serious health condition.

Leave for birth and care or placement for adoption or foster care must end within 12 months of the birth or placement.

Under some circumstances, employees may take FMLA leave periodically. This means taking leave in blocks of time. Or they may reduce their normal weekly or daily work schedule.

• If FMLA leave is for birth and care or placement for adoption or foster care, use of intermittent leave is subject to the employer's approval.
• FMLA leave may be taken periodically when medically necessary to care for a seriously ill family member. It may also be taken if the employee is seriously ill and can't work.

Also, subject to certain conditions, employees or employers may choose to use accrued (built-up) paid leave (such as sick or vacation leave) to cover some or all of the FMLA leave.

The employer decides if an employee's use of paid leave counts as FMLA leave. This is based on information from the employee.

A covered employer has to keep group health insurance coverage for an employee on FMLA leave if the insurance was provided before the leave was taken. Also, coverage must be on the same terms as if the employee had never left work. If needed, arrangements will need to be made for employees to pay their share of health insurance premiums while on leave. In some cases, the employer may get back premiums they paid to keep health coverage for an employee who fails to return to work from FMLA leave. If the health benefits run out while you are out on FMLA, your employer must tell you about COBRA benefits and, if it applies, a letter of creditable coverage (see HIPAA):

• Consolidated Omnibus Budget Reconciliation Act (COBRA). This law was passed by Congress in 1986. It makes sure that employers continue group health coverage that would have ended when the employee left or was fired. This law covers employers with 20 or more employees. It applies to nongovernment jobs and state and local governments. Once you are unemployed, the employer must inform you of benefits. Then you would have 60 days to choose COBRA. Or lose all rights to the benefits. The usual length of coverage is 18 months. There may be other circumstances that would cause the employer to extend the benefits to the maximum of 36 months. Any coverage provided while you are out on FMLA is not to be considered as COBRA coverage. The premium you must pay may vary. But it can't be more than 102% of the normal coverage rate for an employee in a similar situation.
• The Health Insurance Portability and Accountability Act of 1996 (HIPAA). This law includes important new protections for working Americans and their families who have pre-existing medical conditions. Or those who might face discrimination in health coverage. HIPAA also:
  • Limits exclusions for pre-existing conditions.
  • Prevents discrimination against employees and dependents based on their health status.
  • Guarantees the availability of health coverage and the ability to renew health coverage.

On return from FMLA leave, an employee must be restored to their original job. Or to an equivalent job with equivalent pay, benefits, and other terms and conditions of the job.

Also, an employee's use of FMLA leave cannot result in the loss of any benefit that the employee earned or had a right to before using FMLA leave. Their use of FMLA also can't be counted against the employee under a no-fault attendance policy. In some cases where returning to work will cause substantial and economic injury to its operations, an employer may refuse to reinstate highly paid key employees after using FMLA leave if health coverage was maintained at that time. In order to do this, the employer must:

• Tell the employee about their status as a key employee in response to the employee's notice of plans to take FMLA leave.
• Tell the employee as soon as the employer decides it will not restore the employee to the same job and explain the reasons for this decision.
• Offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice.
• Make a final decision about whether to deny reinstatement at the end of the leave period if the employee then asks to be restored to the same job.

A key employee is a salaried eligible employee who is among the highest paid 10% of employees within 75 miles of the work site.

The ADA requires an employer with 15 or more employees to provide reasonable accommodation for those with disabilities, unless it would cause undue hardship. A reasonable accommodation is any change in the work environment. Or in the way a job is done that allows a person with a disability to have equal job opportunities. There are three types of reasonable accommodations:

• Changes to the job application process
• Changes to the work environment or the way a job is usually completed
• Changes that allow an employee with a disability to enjoy equal benefits and privileges of a job

Undue hardship would be changes to the work environment that would include significant difficulty or expense. Undue hardship also refers to accommodations that would be disruptive or that would change the nature of the business. Each case of reasonable accommodation or employers' charge of undue hardship would be handled on a case-by-case basis.

Employers can make more than one reasonable accommodation. Reasonable accommodations include:

• Shifting minor job duties to other employees.
• Unpaid leave time that does not present undue hardship.
• Modified or part-time scheduling.
• Being assigned to a new position that you are qualified for.
• Making the workplace accessible and usable for people with disabilities.

Key things to think about when asking for a reasonable accommodation include:

• Your qualification for a new position or ability to still perform in the previous position.
• The employer is not required to eliminate primary job duties.
• The employer is not required to provide personal-use items like wheelchairs or prosthetic devices.
• The employer is not required to change a work schedule if it affects the productivity of other employees and if it causes undue hardship.
• The employer can deny a leave request when no approximate return date is given so that they may either plan for your return or get a replacement. This would involve undue hardship.

When leave is needed and if you qualify, you should use the FMLA.

This law addresses:

• Employer coverage.
• Employee eligibility for the law's benefits.
• Leave entitlement, keeping health benefits during leave, and restoring the job after leave.
• Notice and certification of the need for FMLA leave.
• Protection for employees who request or take FMLA leave.

The law also requires employers to keep records. Unlike with the ADA, you may file a complaint and get a lawyer without a right to sue letter.

FMLA applies to:

• All public agencies, including state, local, and federal employers, local education agencies (schools).
• Private employers who employed 50 or more people in 20 or more weeks in the current or previous calendar year. And who are also engaged in commerce or in any industry or activity affecting commerce. This includes joint employers and successors of covered employers.

In order to be eligible to take leave under the FMLA, an employee must:

• Have worked for the employer for at least 1,250 hours for 12 months. The 12 months of work don't have to be consecutive.
• Work at a location in the U.S. or in any territory or possession of the U.S. where the employer within 75 miles employs at least 50 people.

Employees seeking to use FMLA leave must provide 30-day notice of the need to take FMLA leave when the need is foreseen and such notice can be obtained. Employers may also require employees to provide:

• Medical certification that supports the need for leave due to a serious health condition that affects the employee. Or an immediate family member. (A serious health condition is one that requires the employee to miss 3 days of work due to illness or injury.)
• Second or third medical opinions (at the employer's expense) and periodic recertification. If an employee submits proper documentation from their treating doctor that shows a serious health condition, the employer has the right to have the employee seen for second opinions. But the doctor chosen by the employer must not work for the employer or have a contract with the employer to provide medical services. The only way for this to happen is if there are two or less doctors in the area to provide the type of medical services needed.
• Periodic reports during FMLA leave about the employee's status and intent to return to work.

When intermittent leave is needed to care for an immediate family member or the employee's own illness, and is for planned medical treatment, the employee must try to schedule treatment so as not to overly disrupt the employer's operation. Covered employers must tell employees of their rights and responsibilities under FMLA. This includes giving specific written information on what is required of the employee and what might happen in certain cases. An example is if the employee fails to return to work after FMLA leave.

When signing forms for leave that is not covered by the FMLA or ADA, be aware of the benefits that you have built up over a period of time. Make sure that you are not using vacation and sick leave time when you should be using FMLA or ADA. Some employers offer sick leave and vacation time as pay when an employee is out. The employee should always fully understand what they are signing. The law will assume the employee did understand and agreed to that document. This can be a complex process. But it is important not to feel bullied. Ask questions until you understand the information. An attorney experienced in this area could be a huge help.

Here are the steps to take:

• If you are the person filing a complaint with human resources, you must sign the official complaint. But always ask to know the consequences of signing any document that is given. Carefully review each document for content.
• Check with the local EEOC office if it is something that is not easily understood. Or contact Patient Advocate Foundation (PAF) for case manager or attorney advice. This information is on the PAF website.
• With recent changes in the ADA and the definition of disability often reevaluated, the FMLA is a patient's best friend. It is the only law that protects your job and clearly defines exactly what benefits an employee has.
• An employer must, within 2 business days of being notified that an employee has a potential serious health condition, designate the leave as FMLA leave. So it is essential to tell an employer as soon as possible about serious health conditions.
• If an employer fails to re-credit leave, the employee may bring an action to enforce rights under the FMLA.

These issues are complex and can feel overwhelming when you or a family member has a serious medical issue. Think about having a trusted friend or family member sit in on meetings and help you with the process. Seek support and guidance from your company's human resources department. And, if issues become complex or hostile, think about getting legal help. An employee generally has 2 years to report violations of any of these FMLA requirements to the U.S. Department of Labor.