Sunday, February 23, 2014

IBD and the Americans With Disabilities Act

Is IBD a Disability?

This post is United States specific, but I would welcome comments from those in other countries about the applicable law in their location.  Here we look at the evidence for IBD as a disability.  In the case of the United States, evidence comes in the form of the law and of legal precedent.  The governing law in this case is the Americans with Disabilities Act (ADA). 

The ADA was passed in 1990, and the most relevant piece for those with IBD, Title 1, applies to employers and states that a covered entity shall not discriminate against a qualified individual with a disability, and requires covered entities to make reasonable accommodations that do not pose an undue burden for those with disabilities.  The other titles of the ADA deal with commercial facilities, public transportation, and similar entities.  While it does not directly address federal employees, they are covered under Section 501 of the Rehabilitation Act.(1)

A person with a disability is defined by the ADA as anyone who:

Has a physical or mental impairment that substantially limits one or more major life activities

Prior to 2008, the definition was narrow and likely did not cover Crohn’s Disease or Ulcerative Colitis.  In 2008, the Act was amended to include the following language:

[A] major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions(2)

The inclusion of “bowel” and ”digestive” functions as “major life functions” seemingly includes IBD sufferers as potentially covered.  There have been some cases that have addresses this in the courts:

·         In EEOC v. University of Maryland Faculty Physicians, Inc., an employee in the Pediatrics unit who answered phones and scheduled appointments, was terminated for missing work.  The employee, Doneen King, suffered from Crohn’s Disease and missed two weeks of work due to disease activity that resulted in 2 ER visits and one hospitalization.  King requested an additional day of unpaid leave, and was terminated for violation of the organizations Lateness and Attendance policy.  King was awarded $92,500 as a result of a settlement and under consent decree the organization was required to change its attendance policy to cover King as a reasonable accommodation.(3)
·         In EEOC v. Browning-Ferris, a boom truck driver with Crohn’s disease, Deborah Brown, was terminated by her employer.  They alleged that exposure to the waste management environment would exacerbate her condition and that the conditions may be “life threatening” for her.  As a result, they terminated her employment.  Under consent decree Brown was paid $194,000 and reinstated to her position.(4)
·         In Wingrad v. Pennsylvania State Police, a case that is currently ongoing, 911 was called to get medical assistance for the plantiff’s son.  The State Police arrived and found the son was agitated and mentally confused due to medication related to his depression and IBD.  The son took a swing at one of the police, and they Tasered him and restrained him in a way that caused cardiac arrest, and then failed to perform resuscitation.  The lawsuit alleges that the Pennsylvania State Police failed to appropriately train officers, pursuant to ADA, on dealing with individuals that have physical and mental disabilities.  While there are likely additional factors in this case that have not yet come to light, it will be interesting to watch in 2014.(5)

While lawsuits are the result of organizations NOT abiding by federal law, what are reasonable accommodations that can be made without causing things to escalate to that level?  This mostly applies to the workplace in practice, since that is where many of us spend the majority of our time.  First off, to avoid having any protracted battles it is recommended that you have your physician write a letter stating that you have active Crohn’s Disease or Ulcerative Colitis and that you require special accommodations – the CCFA provides a sample letter here.  The law only requires your employer to make accommodations that are reasonable – this would preclude actions like building a new bathroom just for you at a small store or letting you work from home when you occupy the position of a receptionist.  There are many accommodations that are reasonable, however, and these can include:

·         Starting work an hour later or earlier to avoid getting caught in traffic (with no access to a bathroom)
·         Taking your own vehicle on corporate field trips to avoid being stuck in a bus with no restroom
·         Being seated closer to the restroom
·         Being allowed to access restrooms in other areas
·         Having the ability to be flexible in scheduling sick leave
·         Taking more frequent breaks that are unscheduled
·         Being provided a private location to take medication

The specific accommodations requested will likely be tailored to your particular job situation.  There is nothing stopping you from being creative in working with your employer to find a mutually beneficial solution.

While non-employer accommodations are also required (allowing the use of an employee bathroom at a retail store could be reasonably argued as being required), this area of the law has not been well litigated with respect to IBD and arguing the finer points of the ADA isn’t likely to help in a crisis situation.  In states where Ally’s Law is in place, things are clearer.

Bottom Line

·         The Americans with Disabilities Act includes the digestive system as a major bodily function, making IBD a covered condition.
·         Those with IBD are entitled to reasonable accommodations – especially at their employer.


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