Work: Legal Protections At Work (An Overview)
While you don't need to have an attorney's understanding of the laws that protect you as an individual with a medical condition, having some basic knowledge of available protections can be helpful.
The protections generally flow from the effect of your health condition, rather than the condition itself. Each situation is treated on a case-by-case basis. Sometimes just a diagnosis by itself is enough to qualify for protection.
Generally speaking, the protections under the various laws provide:
- Equal and fair treatment -- not better treatment. You can't be discriminated against in any aspect of your job (including raises and promotions), or fired, as a result of disclosure of your diagnosis or genetics.
- Freedom from a prospective employer asking you about your health condition or genes in a job interview or prior to making a conditional job offer.
- Full and equal access to all employer-sponsored benefits, policies, and programs, such as health insurance.
- Confidentiality with respect to your diagnosis or any medical information. The Americans with Disabilities Act (ADA) even requires that this information be kept in a separate file separate from your personnel file.
- Performance evaluations based on your abilities, not on your health status.
- The right to request an accommodation to perform the essential functions of your job, as long as the accommodation does not create undue hardship for your employer. (See Negotiating an Accommodation.)
- The right to request unpaid medical leave if qualified (See Paid and Unpaid Leave.)
- The right to extend your employer provided health insurance if you leave work (COBRA.)
- The right to have your previous health coverage counted against a period during which a new employer's plan would normally exclude coverage for a pre-existing health condition. (HIPAA.)
Following is a list of the relevant laws. To learn about the law, click on the link:
- The Americans With Disabilities Act (ADA) protects employees of most non-government employers with fifteen or more employees who have a serious health condition from discrimination. It also provides that you must receive a reasonable accommodation if needed to help you do your work. Your health information must be kept confidential. The Act also provides protections in other areas, such as housing.
- The Federal Rehabilitation Act Of 1973. The Federal Rehabilitation Act of 1973 makes it illegal for the federal government or companies that contract with the federal government to discriminate on the basis of a disabling health condition. Basically, the protections of this Act are the same as under the Americans With Disabilities Act (ADA). For information, click on the following links:
- The Family And Medical Leave Act Of 1993 (FMLA). This federal law requires most employers with more than 50 employees to provide 12 weeks of unpaid leave per 12 month period for medical treatment for yourself or a family member.
- State And Local Laws. A number of state laws and some local laws also follow the general format of the Americans With Disabilities Act (ADA.) They prohibit discrimination on the basis of disability and require reasonable accommodations. They generally extend protections to employees of employers who have fewer employees than required by the ADA. Many states also have laws similar to the FMLA, extending the protections to employers with fewer employees. To learn about the law in your state: for ADA type protections, see Discrimination, State Laws. For FMLA type protections, see FMLA, State Laws.
- COBRA (1985 Consolidated Omnibus Budget Reconciliation Act). Basically, COBRA provides that if you have health insurance through work and stop working for any reason – including because of your health – you are entitled to continue the group coverage for at least 18 months.If you are “disabled” when you leave work, you can continue coverage under a sister law known in short-hand as OBRA, for an additional 11 months. 18 months + 11 months = 29 months, the number of months before Medicare starts for people who are disabled. The kicker is you have to take over payment of the entire premium.
- HIPAA: (Health Insurance Portability And Accountability Act of 1996): HIPAA prevents job lock for people with a health condition by prohibiting discrimination and protecting against new pre-existing condition exclusions. It also provides a right to convert employer based health insurance to individual coverage if you lose it.
- ERISA: Under ERISA, you cannot be offered health insurance that's different from people who do not have a health condition. For example, an employer's health insurance cannot have a lifetime cap on medical expense of $1,000,000 except that for people with pancreatic cancer, the limit is $50,000. It should be noted, however, that ERISA does not apply if the employer's health plan is self insured.
- Title VII Of The Civil Rights Act. An amendment to Title VII of the Civll Rights Act prohibits discrimination by covered employers on the basis of disability as well as factors such as race, color, religion, sex or national origin. The amendment is commonly known as the Americans With Disabilities Act (ADA). See above.
- The Genetic Information Nondiscrimination Act (GINA) prohibits discrimation or harrassment based on genetic information when it comes to health insurance and any aspect of employment.