Hey, it's Barkin. Welcome back to the next edition of the Employee Survival Guide, where I tell you what you really need to know. Today's topic. You may be protected and not know it, understanding disability rights in the workplace. The hidden problem when workers don't realize they're disabled. Every week, employees across the country face challenges at work, fatigue, anxiety, migraines, chronic back pain, or depression. Yet these workers never consider that these conditions might qualify as disabilities under state and federal law. They keep working harder, downplaying their symptoms, and sometimes even apologizing for not needing flexibility. When an employer later penalizes or terminates them for attendance issues or performance decline, the employee only learns after the fact that they may have been protected all along under the Americans with Disabilities Act, the ADA, or its state and local equivalents. There's a problem that workers often misunderstand, what disability actually means. Legally, disability is not a personal failing, nor does it require a visible or severe limitation. You may not know it, but I have a disability that you can't see. It's actually not visible. It's dyslexia. Many people have it. The ADA defines disability far more broadly than most people realize. But if an employee never identifies as disabled, never requests an accommodation, and never gives notice, the law's protections may never come into play. We regularly see clients who only learned they were disabled after they have already lost their jobs. I will correct that misunderstanding and show you a broad how broad the law truly is and why the stigma keeps people silent, and what steps employees can take to assert their rights before their employers can take advantage of those delays. The stigma of disability. Despite three decades of progress under the ADA, the stigma surrounding disability remains largely ingrained in our culture. For many employees, especially professionals in competitive industries, the labeled disabled feels incompatible with the image they've worked so hard to maintain. They fear it implies weakness, unreliability, or diminished capacity. Some worry about being passed over for promotions at the work, others being pitied or micromanaged. This culture, or the cultural discomfort with the label of disability, can often lead to silence by workers. A project manager with panic disorder may avoid mentioning side effects of medicine they may need to take. A software engineer with Crohn's disease may not disclose the need for flexible bathroom breaks. An executive experiencing postpartum depression may dismiss it as just stress. Even medical professionals, doctors, nurses, and physician assistants often hide their own mental, emotional, and physical status for fear of professional scrutiny. They may worry that disclosure could jeopardize hospital privileges, trigger reporting obligations, or call their clinical judgment into question. Unfortunately, those most trained to recognize and treat health conditions often receive the least compassion when they face their own. These individuals can likely meet the technical definition of disabled under the law, but fear of stigma keeps them from saying so. The reality is that the ADA was designed to destigmatize disability by shifting the focus from what a person can't do to what they can do with reasonable support. Congress explicitly rejected the old model of total disability that required visible impairment. The law's goal is inclusion, not separation. Yet stigma lingers because workplaces still reward endurance over honesty. Employees worry that disclosure will change how they're perceived. Managers often receive little training on handling accommodations appropriately, and I will tell you that by experience over my long career. Recognizing the social dynamic is critical. Refusing the label of disabled does not erase the legal status. It only potentially disqualifies someone from benefiting from protections they might otherwise have been able to receive. What matters is whether a condition substantially limits a major life activity, not whether an employee identifies as disabled. Accepting this broader definition can empower workers, including those in medicine and other demanding professions, like the law, to seek adjustments, like modified schedules, peer support, or short-term leave that allow them to keep thriving both personally and professionally. But what counts as a disability under the law? The ADA, in its 2008 amendments, define disability in three overlapping ways. An actual impairment that substantially limits one or major life activities, two, a record of such impairment, even if it's not currently limiting you. And three, being regarded as having such an impairment whether or not one exists. Major life activities include a wide range of physical and mental functions. These are basic acts such as walking, sleeping, concentrating, communicating, working, lifting, thinking, and many others. The ADA explicitly instructs courts to interpret substantially limits broadly in favor of coverage. What this means is that many common and invisible conditions will disqualify or will well qualify, such as anxiety, depression, ADHD, diabetes, autoimmune disorders, migraines, and recovery from surgery. So do episodic conditions that flare up over time. The focus, as explained by the EEOC, the Equal Employment Opportunity Commission, should not be on whether the impairment is severe, but whether it limits the person's ability to perform everyday activities compared to most people in the general population. State laws may provide protections that go even further. For example, in Connecticut, we have the Connecticut Fair Employment Practices Act, and most states have one as well, that protect employees from any chronic condition or past history of impairment that impacts work. In New York, disability is defined to include conditions that merely prevent the normal exercise of a bodily function. A notable expansive standard. While in California, the Fair Employment and Housing Act protects even temporary conditions if they limit major life activities. Together, these statutes make clear you don't need to be in a wheelchair, blind or permanently unable to work to be disabled. If your health condition affects your functioning, and especially if your employer knows about it, you are likely entitled to protections. Here are the basic criteria for protection. A common myth is that an employee must formally declare, I have a disability under the ADA. However, the law recognizes that most employees aren't lawyers and may not know these terms. Instead, an employee only needs to put the employer on notice that they have a medical condition affecting their ability to perform the job. For example, telling your supervisor, I'm having an anxiety attack and I might need to work from home once a week is enough to trigger the employer's duty to engage in what's called the interactive process. Requesting time off for surgery, treatment, or recovery signals a need for accommodation. Even informal discussions such as emailing HR about a health issue or giving a doctor's note can count. Then once in notice, the employer must initiate a dialogue to determine the reasonable accommodations. This is the interactive process. Think about like talking like adults, or just normal conversation. They can request limited medical documentation, meaning the employer, but they cannot ignore or punish the disclosure you just made that you want, you have a disability, you need some assistance. When employers fail to respond, or worse, retaliate, they violate the ADA. And that's where I come in, which, you know, I don't like coming in, yeah, but that's what we do. What counts as disability discrimination? It takes a form of many forms, but both over and subtle. At its core, it occurs when an employer treats an employee less favorably because of a disability or perceived disability. Examples include refusing to hire or promote an individual after learning of a medical condition. That happens a lot. Denying a requested accommodation without showing that it causes undue hardship. Ironically, that happens a lot. A terminating or disciplining an employee for using leave, attending medical appointments, or taking time off to recover, again, it happens a lot. We deal with it. Creating a hostile environment through jokes, gossip, or persistent questioning about health, people are really inhumane and they do it quite often. Retaliating after an employee requests accommodation or files for an ADA complaint, that happens far too often. The regarded as provision covers even cases where the employer's assumptions are wrong, such as believing the employee where the past injury is too fragile for certain work. Under the ADA, no proof of substantial limitations required in regarded as cases, only evidence that the employer took an adverse action because of the perceived impairment. The regarded as prong came about, I imagine, to my research over the years. Everyone remembers the Tom Hanks film where he had AIDS. And Congress believed that back in the 80s, you know, when this happened, that they would put a provision provision in there to uh cover that condition. It's a good prong of the ADA, and I'm glad it's there. I've used it quite often. And in the same time I've used it with the other prongs of the ADA disability. But back to the topic. Courts have repeatedly affirmed that timing matters when adverse actions closely follow disclosure or accommodation requests. The inference of retaliation is strong. So we're looking for that nexus between the time you ask or tell them you need help and what they did after that. Here's what they're supposed to do. They're supposed to have an interactive process, like I said. Once an employee discloses a disability or requests support, the employer must engage in a good faith interactive process. What the hell's good faith? It means an honest discussion, not one where there's an agenda by the employer to set you up under a pip or something like that. This means more than a single email. It requires an open communication, many communications about what accommodations might work. Reasonable accommodations can include a modified work schedule or remote work options, which is common these days post-pandemic. Reallocation of marginal job functions, ergonomic work stations, assistive devices, paid or unpaid leave for medical treatment, short-term disabilities, that's what that fits into, and Femine Medical Leave covers that as well. Adjustment of performance metrics and supervision methods. I will point out that there's a federal government agency. It's called the Job Accommodation Network. And you can go to it on a URL, ask A S-K, Jan Jn.gov. So ask Jan.gov. And what we and I have done this effectively, I've used JAN and have communicated my use of JAN to the employer and invited them to a communication or conversation where the person at Jan gets up, they do a case, set up a new case, and they begin to work through what possible accommodations the employee might need. And it forces the employer's hand to discuss. And they hate this. But it's a way to demonstrate that you've did it and that you protect yourself under the ADA. So remember, ask JAN at A-S-K-J-N-J-A-N.gov, and use that to free the service of the federal government, your taxpayer dollars at work. Employers are not required to provide accommodations that impose undue hardship, significantly difficulty or expense. However, most accommodations don't cost very much, if anything, at all. However, they cannot rely on assumptions or convenience. The law expects them to explore options, document the discussion, and propose workable solutions. And I suggest you document your discussions as well as they would, and you basically use your email to do that. For example, you would set up a communication or a teams meeting and saying we're having this meeting, and then summarize the meeting after you get off in an email. It's time stamped, you can't get rid of it. When employers skip this process by unilaterally denying requests, insisting on a full-time presence despite medical limits, or ignoring communications, they risk liability. Courts routinely hold that failure to engage in the interactive process is in and of itself evidence of discrimination and adverse action. The emotional toll being misunderstood. For employees with invisible disabilities, like the one I have, dyslexia, which is very common, the workplace can become emotionally exhausting. Many spend months overcoming or overcompensating, staying late, masking symptoms, and trying to prove that nothing is wrong. When their performance is inevitably dips, they face criticism or suspicion instead of compassion. At that moment, the employee realizes too late that silence offered no protection. Without disclosure, there's no legal record or of a disability or request for accommodation. The employer will then be incentivized to frame the issue as one of performance, not of discrimination. That strategy right there is the primary strategy most employers use. They can find that this person did not request, they're going to attack the issue and then blame it everything on performance. Understanding your rights easily can prevent that spiral speaking up, using medical language, requesting accommodations in writing, and documenting interactions all create a clear timeline for if discrimination later occurs. Attorneys can then connect the dots between the notice, retaliation, and adverse action. Pretty easy case to prove. Courts interpret disability broadly. When Congress passed the amendments to the ADA, it sent a clear message to the courts. The definition of disability must be interpreted expansively, not narrowly. I had the misfortune of starting my career before the amendments, and I can tell you I read many a case from many a liberal judge who said you didn't have a disability. And it was pretty tragic for a number of years that this happened, and many people had to well, they didn't have a case. So we had the amendments by Congress, and we now broadly construe disability. Since then, decisions across the country have been reinforced that the law's reach is intentionally broad, covering not only permanent conditions, but also temporary and episodic impairments that substantially limit major life activities. This wide recognition is not limited to just the traditional, but more liberal court jurisdictions also follow it. Following examples the case of some nurses alterum, the case involved the plaintiff who suffered severe leg injuries that required months of recovery. Even though his condition was temporary, the court held that the injuries substantially limited his ability to walk and thus met the EDA's definition of disability. The message was unmistakable. The duration of an impairment does not determine whether it is protected. The impact does. A similar principle emerged in GOGO's versus AMS Medical Symptoms systems, where a worker experienced intermittent vision loss and spikes in blood pressure, though the episodes weren't brief. The court concluded that they limited major life activities such as vision and circulatory function, qualifying him for an ADA protection and allowing him to build a case. Because if you don't have a disability, you don't have the ability to prove a case of discrimination. In Jacobs versus North Carolina administrative office of the courts, yes, it can discrimination can happen in the courts as well, their places of employment. The court recognized that social anxiety disorder could substantially limit a person's ability to interact with others, and therefore anxiety was determined to impact a major life activity under the statute. The decision signaled an important shift. Mental and emotional conditions deserve the same level of protection as physical ones. Together, these rulings illustrate consistent judicial philosophy that the ADA's coverage is meant to be inclusive and not restrictive. Courts no longer ask whether someone is truly disabled. Instead, the inquiry focuses on whether the condition affects the employees' daily functioning. That threshold is intentionally low, ensuring that workers receive the benefit of the doubt and the full protection Congress intended. I will tell you that it is a current new trend in courts to allow employees further protections and lower burdens of proof, as the Supreme Court recently said, how much harm the employees must demonstrate to gain protection under the statutes. We know how confusing and isolating these situations can feel. Many of our clients come to us believing they have no case until we explain to them that the law actually sees their situation. Our role is to bridge that knowledge gap and hold employers accountable when they misuse and ignorance is a defense. We help clients, we help clients by identifying coverage, evaluating whether your condition qualifies as a disability under the statutes, state and federal and even New York City ones, local, sorry, navigating disclosure, advising how to notify your employer and request accommodation strategically, documenting retaliation, preserving emails, evaluations, and meeting notes that show shifting treatment after disclosure, negotiating and litigating, pursuing reinstatement, back pay, compensatory damages, and emotional distress rewards where warranted, preventing future harm, requiring employers to adopt written ADA compliance policies and training as part of a settlement. I think they hate that one. They never want to agree to that in settlement. Finally, an employment law attorney litigates cases under the ADA in state and in New York City law, as well as the Feminine Medical Leave Act and retaliation statutes that often all overlap at the same time. But that's what the employment lawyer does. You shouldn't have to think about that. We combine legal precision with compassion for clients navigating health challenges while protecting their livelihoods. You should empower yourself through knowledge. If you've been struggling with a medical condition at work, physical or psychological, don't assume you must suffer in silence or just tough it out. The law exists precisely to protect employees from being punished for being human. Disability accommodations are not favors. They are rights grounded in federal, state, and local statutes. And understanding those rights allows you to act early, communicate clearly, and protect your career. Whether your issue involves mental health, chronic illness, pregnancy complications, or post injury recovery, legal protection likely applies. You may be disabled under the law, and that's not an insult. It's a recognition that equality sometimes requires adjustment. The sooner you recognize the truth, the sooner you can take back control of your work life. Hope you enjoyed the episode. Talk to you soon.