Houston CFIDS Association

copied from ImmuneSupport Website: 

Founder’s Corner: Fair Name Campaign Update - Exciting New Direction
by Rich Carson, Founder
ImmuneSupport.com
05-19-2008

A number of you have asked about the status of the Fair Name Campaign, so I thought this first newsletter following Awareness Day would be a good time to give you an update. First, and most importantly, the patient community has jumped on board. Your feedback has been positive and encouraging.

Not surprisingly, the vast majority of patients favor adopting a new, fair name, as ‘Chronic Fatigue Syndrome’ is universally perceived as trivializing, dismissive, and thoroughly inaccurate. And, while there are a few people who have other preferences, most of you strongly support adopting the acronym ME/CFS.

Second, and equally as exciting, patient organizations and several in the medical community have also picked up the banner. As a result, we’re already starting to see ME/CFS appear more often. Some examples:

• In January 2007 the IACFS voted to change its name to IACFS/ME.
• The big conference being held in London on May 23 is called the International ME/CFS Conference.
• Researcher and clinician Dr. Charles Lapp has announced that all of their forthcoming research papers will use ME/CFS rather than Chronic Fatigue Syndrome.

When we began the Fair Name Campaign, our intention was to have a vote on whether or not to accept the Name Change Advisory Board’s recommendation of ME/CFS. However, since that time, the campaign has taken on a life of its own, as the use of ME/CFS in both the medical and patient communities is growing steadily. Therefore, we are shifting our focus, from a vote to implementation of the name that is increasingly being recognized and accepted - ME/CFS - and moving forward with the guidance of respected patient leaders.

A New Direction

Since the formation of the Name Change Advisory Board was first announced in January 2007, I have tried to make it clear that this effort has to be driven by patients, patient organizations and the medical community. Now several patient leaders have stepped up, are taking charge, and are pushing the campaign forward. Some of those leaders include:

Karen Lee Richards – co-founder of the NFA and patient expert on ChronicPainConnection.com;

Cort Johnson – founder and editor of the Web site Phoenix Rising, which serves the ME/CFS and FM communities;

Marly Silverman – founder of P.A.N.D.O.R.A, an organization supporting patients with neuroendocrineimmune disorders; and

Dorothy Wall – author of Encounters with the Invisible: Unseen Illness, Controversy and Chronic Fatigue Syndrome.

Just a few of the exciting new things you can look forward to include:

• A completely redesigned Website (to be launched in September) that will give you more in-depth information about the Fair Name Campaign, answers to your questions about the name change, and information about what you can do to help. The site will also be updated regularly, keeping you informed on all the latest news about the progress of the name-change effort.
• An accelerated pace, with a more comprehensive strategy for publicizing the importance of a fair name for patients.
• Celebrity endorsements featuring celebrities who are diagnosed with ME/CFS or who have family members suffering with ME/CFS.
• The several hundred patients who have volunteered to help with the campaign will be contacted over the summer with suggestions of things you can do to move the campaign forward.

Clearing Up the Confusion

The sole intent and purpose of the Fair Name Campaign is to give patients a respectable name for their illness. Studies have proven that patients diagnosed with Chronic Fatigue Syndrome are not taken as seriously as patients with the same symptoms but a different name for their diagnosis. The CFS name not only affects the quality of treatment patients receive, but it also affects the amount of money committed to research. It’s hard to convince those funding research to spend their money on people they think are just tired all the time. Patients deserve to be taken seriously, to have a name for their illness that preserves their dignity, and to receive appropriate medical care.

With this in mind, the committee of patient leaders has spent several months researching and considering each and every concern addressed to and about the Fair Name Campaign. The biggest debate regarding the name change seems to be whether the ME should stand for Myalgic Encephalopathy or Myalgic Encephalomyelitis.

To give you a little background, the Name Change Advisory Board - which was composed of eight leading ME/CFS researchers and clinicians - originally recommended ME/CFS, with the ME standing for Myalgic Encephalopathy. When a few patients strongly vocalized their objections to using encephalopathy, we attempted to compromise, saying the ME could stand for either Myalgic Encephalopathy or Myalgic Encephalomyelitis. In retrospect, that was not a good solution.

There are good, valid arguments on both sides of this issue. Each name has its pros and cons. But in the end, it was felt that we should abide by the recommendation of the Advisory Board – to use Myalgic Encephalopathy as the ME in the acronym ME/CFS. The board members felt strongly that Myalgic Encephalomyelitis should not be used because not every patient diagnosed with CFS had evidence of brain or spinal cord inflammation, which is a key component for a diagnosis of Myalgic Encephalomyelitis. Dr. Nancy Klimas, president of the IACFS/ME, stated that inflammation of the central nervous system is identifiable in 80% of patients, and therefore excludes 20% of patients who also have classic CFS symptoms.

Myalgic Encephalopathy, on the other hand, is a broader, more comprehensive term, and simply means a disorder of the brain. This includes the patients with inflammation, as well as the 20% of patients in whom inflammation cannot be identified. In a word, Myalgic Encephalopathy includes all bonafide CFS patients, whereas Myalgic Encephalomyelitis excludes 20% of these patients. Which category do you think you would fall into?

We want to emphasize the fact that we are in no way trying to minimize or change the name of Myalgic Encephalomyelitis. If anything, we hope this will demonstrate the severity of Myalgic Encephalomyelitis and allow it to stand on its own. If you have evidence of brain or spinal cord inflammation and have been diagnosed with Myalgic Encephalomyelitis, you still have Myalgic Encephalomyelitis. We don’t expect you to change the name of your illness to ME/CFS.

There is one other concern some have expressed about using Myalgic Encephalopathy that we would like to clear up. They are afraid ME/CFS patients will be lumped in with people who have mental disorders. We talked with several medical experts and they all assured us that Myalgic Encephalopathy refers to an organic brain disorder and in no way includes mental disorders. (For a more complete description of encephalopathy, please see the footnoted definitions below.)

Moving Forward

I’m excited about the new energy and enthusiasm that has been injected into the Fair Name Campaign and hope you will be, too. If you’d like to sign the petition or volunteer to help, or submit a comment or question, you can do so now on the Fair Name Campaign Web site (http://www.afairname.org/volunteer.cfm). Don’t forget to watch for the announcement of our improved Campaign Website in September.

Whatever you do, don’t allow yourself to be dismissed as someone who has “chronic fatigue.” We can right this wrong for ourselves, for our families, and for a medical community still in need of a fair, accurate name for a disease that causes immeasurable suffering.

Keep the faith,

Your supporter and advocate,
Rich Carson

Encephalopathy defined:

Source: Medline Medical Dictionary:
en-ceph-a-lop-a-thy: plural -thies:
a disease of the brain; especially one involving alterations of brain structure

Source: New Oxford American Dictionary
encephalopathy |en-sef-a-lop-a-thy|:
noun Medicine a disease in which the functioning of the brain is affected by some agent or condition (such as viral infection or toxins in the blood): pl. -thies

Source: Nature (extremely respected science publication; in business since 1869)
ENCEPHALOPATHY …condition of the brain that can be caused by infectious disease, metabolic abnormalities, brain tumors, toxic drug effects or increased intercranial pressure.

Source: www.virtualtrials.com/dictionary
A disease of the brain; especially: one involving alterations of brain structure.

www.ada.gov can provide information on dealing with schools, doctors, work, etc.

SUPPORT THE CAUSE

Please go to the Grassroots Advocacy section of the CFIDS Association of America website:

http://www.cfids.org/advocacy/default.asp

To participate in their amazing Patient Advocacy program sign up and they will notify you of all current advocacy issues. You do not have to be a member to participate.

UNDERSTAND

One of the most difficult aspects of this condition is the lack of understanding experienced by PWCs. People think we’re malingering, or that they, too, experience these symptoms, or otherwise simply “don’t get it” no matter now well-intentioned they may be. By simply getting a basic understanding of what’s happening with your loved one or colleague, you can be a tremendous gift and support. Five minutes is all it takes.

• CFIDS Assn/CDD Spark! Campaign PSA (requires Windows Media Player)
• Sleepydust.net Chronic Fatigue Syndrome Video for Family & Friends

In today’s edition of CFIDSLink, the Association announces the hiring of a new Scientific Director to advance CFS research. This news has also been released to the national media through PRNewswire and has already been picked up by several online news sources.

CFIDS Association of America Names New Scientific Director To Advance Chronic Fatigue Syndrome Research

Charlotte, North Carolina-November 7, 2007. The CFIDS Association of America announced today that Suzanne Vernon, PhD, has been named scientific director and will lead the Association’s research program for chronic fatigue syndrome (CFS). She will oversee Association-funded research grants, foster opportunities for data sharing and collaboration among CFS researchers worldwide, and help build a framework for accelerating the pace of research through multidisciplinary, translational research.

To support these research initiatives, the CFIDS Association is announcing a new campaign to raise a million dollars over a one-year period to fuel the program. This is the largest research campaign for CFS to date in the United States.

The post of scientific director was created to enable the CFIDS Association to focus on facilitating new networks of communication and collaboration-and strengthening existing networks-among researchers doing basic science and clinicians on the front line of patient care.

Dr. Vernon has 17 years of experience as a microbiologist at the Centers for Disease Control and Prevention (CDC), where she helped identify viral markers that predict cervical cancer before moving into the CFS research group at the agency in 1996. She led the CDC’s chronic fatigue syndrome Molecular Epidemiology Program for the past decade, and her team was one of the first research teams in the world to apply human genomics and genetics to identify biologic and diagnostic correlates of CFS.

“Dr. Vernon’s CFS research background and broad skill set makes her the ideal choice for this new position,” said Kimberly McCleary, president and CEO of the CFIDS Association. “Dr. Vernon helped pioneer the application of proteomics and genomics to chronic fatigue syndrome at the CDC, and now she will help our organization pioneer a new model for speeding the progress of CFS research and translating the science for health care professionals and patients to move clinical care forward and ultimately lead to more effective treatments.”

Dr. Vernon says it’s not uncommon for there to be a huge gap between science and medicine, and that CFS is no exception. “There has been tremendous progress made by CFS researchers around the world in the last decade,” she said. “We now understand an enormous amount about the pathophysiology of CFS, and about the body systems that are broken or altered by this disease. Now it’s time to move the entire field forward by encouraging the kind of collaboration and communication among scientists that propels research to the next stage and to spearhead empiric diagnostic efforts and new treatment interventions.”

Benjamin Luft, MD, a professor and infectious disease specialist at SUNY at Stony Brook, said today, “The appointment of Suzanne Vernon as the scientific director of the CFIDS Association is a coup for both the Association and all who care about understanding and treating this elusive condition. Over the years, Dr. Vernon has been an important part of the leadership of a multidisciplinary systems biology effort at the CDC to understand the intricate dysregulation that occurs with chronic fatigue syndrome. In bringing together various disciplines from computational biology and genomics to epidemiology and clinical medicine, this work serves as a paradigm for understanding diseases that are caused by a multiplicity of factors. Ultimately, this knowledge is our best hope for effective therapy.”

Nancy Klimas, MD, an internationally recognized CFS researcher and clinician based at the University of Miami, believes this new research vision “is the next imperative step for the CFS field to help move the body of science forward into pathophysiologic and subgroup-based clinical intervention studies.” She added, “Dr. Vernon has shown a unique ability to bring experts from divergent fields together. She has tremendous enthusiasm for this work, and her compassion for patients afflicted with this illness is obvious. She is deeply respected by the scientific community, and I can think of no better choice for this important position.”

Specific priorities that Dr. Vernon will address for the CFIDS Association include:
• Leading the Association’s own research grants program, which has funded $4.8 million in research so far, to expedite progress in the search for biomarkers, treatments and a cure
• Building strong collaborations with CFS researchers across the world to identify synergies, gaps and opportunities that warrant higher priority
• Developing new opportunities for scientists to share ideas, knowledge and data to advance the field
• Surveying other fields of research for findings and scientific approaches of potential relevance to CFS
• Assisting in efforts to secure a new infusion of federal research funding for CFS
• Attracting new investigators from a number of disciplines to the field of CFS research.

I am including ProHealth Immune Support on our site because, although they sell “product”, they are PWC owned and are great advocates for CFS/ME/CFIDS.

“The ProHealth story begins back in August 1981, when at the age of 23, Rich Carson woke up one day with severe flu-like symptoms. Rich saw a specialist who ran tests for strep throat and mononucleosis, but the results for both tests were negative. Sometime later, while still feeling extremely ill, Rich spoke with an internist who informed him that he may be suffering from either a chronic cytomegalovirus or a chronic Epstein-Barr virus infection. Pointed in the right direction, Rich telephoned every researcher he could find to investigate his illness, which has since come to be known as Chronic Fatigue Syndrome.

By 1986, Rich was spending two or three hours a day on the telephone with CFS patients and researchers, and started one of the first and largest CFS support groups in the country. Rich’s determination to help CFS patients soon lead to the creation of ProHealth, Inc. Founded in 1988, the company’s mission is to provide a comprehensive resource for people with Chronic Fatigue Syndrome and Fibromyalgia.

An important part of Rich’s treatment plan includes alternative therapies that greatly relieve many of his symptoms. The Health Resource Catalog was published to share with other patients the supplements he found to be most effective. Additionally, Rich realized the Internet is a great way to spread useful, up-to-the-minute information to the many thousands of CFS and FM sufferers worldwide, and so ImmuneSupport.com was created.”

Please cut and past the following link or the link on our home page under “links” to view this informative site:

www.immunesupport.com/tracklinkexchange.cfm?linkid=1068″>Fibromyalgia & Chronic Fatigue Syndrome Resource

Patients with Chronic Fatigue Syndrome (PWC’s) have a choice to make the moment they are diagnosed. Do I give up and go to bed or do I fight? The choice is yours and yours alone but I say fight! Fight the illness! Fight the misunderstanding! Fight the medical community!

Become an advocate informing everyone you know or meet about the illnesses parameters and how it affects your daily existence. Help others understand the debilitating nature of the illness through access to both CFIDS of America’s and Houston CFIDS Associations websites. Above all, keep faith in yourself and your ability to survive.

Information is your best defense from discrimination in your life and with medical professionals.

Remember our national slogan: Get Informed, Get Diagnosed, Get Help!

posted by MaryMargaret Lytle

The U.S. Equal Employment Opportunity Commission

The Family and Medical Leave Act,
the Americans with Disabilities Act, and
Title VII of the Civil Rights Act of 1964

This fact sheet was prepared by the Equal Employment Opportunity
Commission's (EEOC) Office of Legal Counsel.  It is intended to
provide technical assistance on some common questions that have
arisen about the Americans with Disabilities Act of 1990 (ADA)
and Title VII of the Civil Rights Act of 1964 (Title VII) when
the Family and Medical Leave Act of 1993 (FMLA) also applies.

Introduction

Background

1.   Q:     What is the relationship between requirements of the
            FMLA,1 the ADA,2 and Title VII3?

     A:     The FMLA and the ADA both require a covered employer
            to grant medical leave to an employee in certain
            circumstances.4  The FMLA and Title VII both have
            requirements governing leave for pregnancy and
            pregnancy-related conditions.  

            In addition, under Title VII, employers must not
            discriminate on the basis of race, color, religion,
            sex, or national origin when they provide family or
            medical leave.

2.   Q:     Who enforces the FMLA?

     A:     The Department of Labor enforces the FMLA.  The EEOC
            has no enforcement responsibility for the FMLA.

3.   Q:     When did the FMLA go into effect?

     A:     The FMLA went into effect on August 5, 1993.5  The
            FMLA final rule became effective on April 6, 1995.6

Basic FMLA Requirements

4.   Q:     What leave is an employee entitled to under the FMLA?

     A:     Under the FMLA, an "eligible"7 employee may take up
            to 12 workweeks of leave during any 12-month period
            for one or more of the following reasons:

            (1)     The birth of a child, and to care for the
                   newborn child;

           (2)     The placement of a child with the employee
                   through adoption or foster care, and to care
                   for the child;8

           (3)     To care for the employee's spouse, son,
                   daughter, or parent with a serious health
                   condition; and

           (4)     Because a serious health condition makes the
                   employee unable to perform one or more of the
                   essential functions of his or her job.9

5.   Q:     What other rights do "eligible" employees have in
            conjunction with FMLA leave?

     A:     During FMLA leave, an employer must maintain the
            employee's existing level of coverage under a group
            health plan.10  At the end of FMLA leave, an employer
            must take an employee back into the same or an
            equivalent job.11

When FMLA, ADA and Title VII Coverage Overlap

6.   Q:     What employers are covered by the FMLA, the ADA and
            Title VII?     

     A:     The FMLA covers private employers with 50 or more
            employees.12  The ADA and Title VII cover private
            employers with 15 or more employees.13  Thus, only
            those private employers with 50 or more employees are
            covered concurrently by the FMLA, the ADA and Title
            VII.14  

            State and local government employers are covered by
            the ADA and the FMLA, regardless of the number of
            employees.15  State and local government employers
            are covered by Title VII, however, only if they have
            15 or more employees.16

7.   Q:     Are all employees who are protected by Title VII or
            the ADA also entitled to leave under the FMLA?

     A:     No.  Employees protected by Title VII or the ADA must
            be independently "eligible" for FMLA leave.
            "Eligibility" for FMLA leave depends on several
            factors, for example, length of service.17  In
            addition, an individual must be employed by an FMLA-
           covered employer with 50 or more employees to obtain
            FMLA leave.  See Question 6.

The ADA and the FMLA

FMLA "serious health condition" and ADA "disability"

8.   Q:     What is a "serious health condition" under the FMLA?

     A:     An FMLA "serious health condition" is "an illness,
            injury, impairment, or physical or mental condition
            that involves . . . [i]npatient care . . . or
            [c]ontinuing treatment by a health care provider."18  

9.   Q:     Is an FMLA "serious health condition" the same as an
            ADA "disability"?

     A:     No.  An FMLA "serious health condition" is not
            necessarily an ADA "disability."  An ADA "disability"
            is an impairment that substantially limits one or
            more major life activities, a record of such an
            impairment, or being regarded as having such an
            impairment.  

            Some FMLA "serious health conditions" may be ADA
            disabilities, for example, most cancers and serious
            strokes.  Other "serious health conditions" may not
            be ADA disabilities, for example, pregnancy or a
            routine broken leg or hernia.  This is because the
            condition is not an impairment (e.g., pregnancy), or
            because the impairment is not substantially limiting
            (e.g., a routine broken leg or hernia).

            In addition, the fact that an individual has a record
            of a "serious health condition" does not necessarily
            mean that s/he has a record of an ADA disability.
            Under the ADA, an individual must have a record of a
            substantially limiting impairment in order to be
            covered.

            Finally, just because someone has a "serious health
            condition" also does not mean that the employer
            regards him/her as having an ADA disability.  To
            satisfy this prong of the ADA definition of
            "disability," the employer must treat the individual
            as having an impairment that substantially limits one
            or more major life activities.19 

            To determine if an individual has an ADA disability,
            all pertinent evidence, including any information
            about whether the individual has or had a "serious
            health condition," should be considered.  Under the
            FMLA regulations, employers must allow EEOC
            investigators to review pertinent FMLA medical
            certifications and recertifications, and other
            relevant materials, upon request.20  

Medical Certifications, Inquiries and Confidentiality

10.  Q:     Is there a conflict between the FMLA provision
            allowing employers to ask for certification that an
            employee has a serious health condition and ADA
            restrictions on disability-related inquiries of
            employees?

     A:     No.  When an employee requests leave under the FMLA
            for a serious health condition, employers will not
            violate the ADA by asking for the information
            specified in the FMLA certification form.  The FMLA
            form only requests information relating to the
            particular serious health condition, as defined in
            the FMLA, for which the employee is seeking leave.
            An employer is entitled to know why an employee, who
            otherwise should be at work, is requesting time off
            under the FMLA.  If the inquiries are strictly
            limited in this fashion, they would be "job-related
            and consistent with business necessity" under the
            ADA.21

11.  Q:     May an employer keep a single confidential medical
            file for each employee, separate from the usual
            personnel file, for medical documentation under both
            the ADA and the FMLA?

     A:     Yes.  An employer may keep a single confidential
            medical file, separate from the usual personnel file,
            containing both FMLA and ADA medical information if
            the employer follows the ADA confidentiality
            standards.  This includes following the ADA
            interpretations of those confidentiality exceptions
            that are set forth in both the ADA and the FMLA
            regulations.22  For example, employers may not give
            supervisors and managers unlimited access to the
            medical files.  However, employers may give
            supervisors and managers information concerning
            necessary work restrictions and accommodations.23  

Comparison of ADA and FMLA Leave

12.  Q:     Does the FMLA's limit of 12 workweeks of leave in a
            12- month period mean that the ADA also limits
            employees to 12 weeks of leave per year?

     A:     No.  The FMLA does not mean that more than 12 weeks
            of unpaid leave automatically imposes an undue
            hardship for purposes of the ADA.  An otherwise
            qualified individual with a disability is entitled to
            more than 12 weeks of unpaid leave as a reasonable
            accommodation if the additional leave would not
            impose an undue hardship on the operation of the
            employer's business.  To evaluate whether additional
            leave would impose an undue hardship, the employer
            may consider the impact on its operations caused by
            the employee's initial 12-week absence, along with
            the undue hardship factors specified in the ADA.  See
            29 C.F.R. § 1630.2(p).

13.  Q:     How do the ADA and the FMLA requirements compare
            regarding intermittent or occasional leave?

     A:     Under the ADA, a qualified individual with a
            disability may work part-time in his/her current
            position, or occasionally take time off, as a
            reasonable accommodation if it would not impose an
            undue hardship on the employer.  If (or when) reduced
            hours create an undue hardship in the current
            position, the employer must see if there is a vacant,
            equivalent position for which the employee is
            qualified and to which the employee can be reassigned
            without undue hardship while working a reduced
            schedule.  If an equivalent position is not
            available, the employer must look for a vacant
            position at a lower level for which the employee is
            qualified.  Continued accommodation is not required
            if a vacant position at a lower level is also
            unavailable.24 

            The ADA does not prohibit an employer and an employee
            from agreeing on another mutually acceptable
            accommodation.  For example, an employer and employee
            may agree to a transfer, on either a temporary or a
            permanent basis, if both parties believe that such a
            transfer is preferable to accommodating the employee
            in his/her current position.

            Under the FMLA, an "eligible" employee may take leave
            intermittently or on a part-time basis25 for his or
            her own "serious health condition" when medically
            necessary for treatment or recovery, until s/he has
            used up the equivalent of 12 workweeks in a 12-month
            period.26  When such leave is foreseeable based on
            planned medical treatment, an employer may require
            the employee to temporarily transfer (for the
            duration of the leave) to an available alternative
            position for which the employee is qualified and
            which better suits his/her reduced hours.27  

14.  Q:     What are employees' reinstatement rights under the
            ADA and the FMLA?

     A:     Under the ADA, the employee is entitled to return to
            the same job unless the employer demonstrates that
             holding the job open would impose an undue hardship. 

            In some instances, an employee may request more leave under
            the ADA even after the employer has communicated that it
            cannot hold the employee's job open any longer (i.e., there
            is undue hardship).  In this situation, the ADA-covered
            employer must see if it has a vacant, equivalent position
            for which the employee is qualified and to which the
            employee can be reassigned without undue hardship to
            continue his/her leave.  If an equivalent position is not
            available, the employer must look for a vacant position at
            a lower level.  Continued accommodation is not required if
            a vacant position at a lower level is also unavailable.28

            In other instances, an employer may hold the original
            position open, and the employee may want to return to work,
            but may be unable to perform an essential function of the
            original position even with reasonable accommodation.
            Under the ADA, the employer must then consider
            reassignment, first to a vacant equivalent position for
            which the individual is qualified and, if one is
            unavailable, to a vacant position at a lower level.
            Further accommodation is not required if a vacant position
            at a lower level is also unavailable. 

            Under the FMLA, an employee is entitled to return to the
            same position or to an equivalent position.29  However, if
            an employee is unable to perform an essential function of
            the same or equivalent position because of a physical or
            mental condition, the FMLA does not require the employer to
            reinstate the employee into another job.30

15.  Q:     Do the ADA and the FMLA require an employer to continue an
            employee's health insurance coverage during medical leave?

     A:     Under the ADA, an employer must continue health insurance
            coverage for an employee taking leave or working part- time
            only if the employer also provides coverage for other
            employees in the same leave or part-time status.  The
            coverage must be on the same terms normally provided to
            those in the same leave or part-time status.

            Under the FMLA, an employer always must maintain the
            employee's existing level of coverage (including family or
            dependent coverage) under a group health plan during the
            period of FMLA leave, provided the employee pays his or her
            share of the premiums.31  An employer may not discriminate
            against an employee using FMLA leave, and therefore must
            also provide such an employee with the same benefits (e.g.,
            life or disability insurance) normally provided to an
            employee in the same leave or part-time status.32

ADA Compliance When the FMLA Also Applies

16.  Q:     If an individual requests time off for medical treatment,
            should the employer treat this as a request for FMLA leave
            and ADA reasonable accommodation?

     A:     If an employee requests time off for a reason related or
            possibly related to a disability (e.g., "I need six weeks
            off to get treatment for a back problem"), the employer
            should consider this a request for ADA reasonable
            accommodation as well as FMLA leave.  The employer may
            require FMLA certification33 and may make additional
            disability-related inquiries if necessary to decide whether
            the employee is entitled to reasonable accommodation
            because s/he also has a covered disability.  However, if
            the employee states that s/he only wants to invoke rights
            under the FMLA, the employer should not make additional
            inquiries related to ADA coverage.

17.  Q:     When both the ADA and the FMLA apply, how should the
            employer determine which terms and conditions govern the
            employee's initial 12 weeks of medical leave?

     A:     Under the FMLA rule, an employer must provide leave under
            whichever statutory provision provides the greater rights
            to employees.34  For examples of how this principle is
            applied, see the FMLA rule at §§ 825.702(b)-(e).

18.  Q:     As an alternative to a leave of absence, may an employer
            offer an effective reasonable accommodation that will
            enable an employee to continue working?

     A:     An employer may offer an employee a reasonable
            accommodation other than the leave s/he requested under the
            ADA, as long as it is effective.35  For example, an
            employer may offer an assistive device, an opportunity to
            work reduced hours in the employee's current job, or a
            temporary assignment to another job, if these are effective
            accommodations.  

            However, if the individual is "eligible" for leave under
            the FMLA and has a serious health condition that prevents
            him/her from performing an essential job function, s/he has
            the right to take a leave of absence of up to 12 workweeks
            in 12 months, even if s/he could continue working with an
            effective reasonable accommodation.36  While the FMLA does
            not prevent an employee from accepting an alternative to
            leave, the acceptance must be voluntary and uncoerced.37

The ADA and Family Leave

19.  Q:     Does the ADA require an employer to give an employee
            time off to care for a spouse, son, daughter, parent or
            other individual with a disability?

     A:     The ADA's reasonable accommodation obligation does not
            require a covered employer to give an employee time off to
            care for a spouse, son, daughter, parent or other
            individual with a disability with whom the employee has a
            relationship.38  However, an employer would be required to
            provide leave on the same terms as it normally provides
            leave to employees who need to care for someone who is
            ill.39

Title VI

MaryMargaret Lytle has asked that we post further information on Disability Discrimination:

Title I of the Americans with Disabilities Act of 1990 prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. The ADA’s nondiscrimination standards also apply to federal sector employees under section 501 of the Rehabilitation Act, as amended, and its implementing rules.
An individual with a disability is a person who:

• Has a physical or mental impairment that substantially limits one or more major life activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.

A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

• Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
• Job restructuring, modifying work schedules, reassignment to a vacant position;
• Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business. Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer’s size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids.

Title I of the ADA also covers:

• Medical Examinations and Inquiries
  Employers may not ask job applicants about the existence, nature, or severity of a disability. Applicants may be asked about their ability to perform specific job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in similar jobs. Medical examinations of employees must be job related and consistent with the employer’s business needs.
• Drug and Alcohol Abuse
  Employees and applicants currently engaging in the illegal use of drugs are not covered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on disability or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADA.

Statistics

In Fiscal Year 2006, EEOC received 15,575 charges of disability discrimination. EEOC resolved 15,045 disability discrimination charges in FY 2006 and recovered $48.8 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation).

• Americans With Disabilities Act Charges

According to an article published by Dr. Steven Hotze:

“The Texas Medical Board (TMB) is denying physicians the constitutional right of due process, destroying their lives and the lives of the patients who rely upon them for care … The TMB allows anonymous complaints by insurance companies. These anonymous complaints target physicians who oppose the insurance companies’ “standards of care” which limit treatment options, deny claims and increase insurance company profits. The TMB then destroys the physicians whom the insurance companies have targeted. This is meant to teach a lesson to any physician who would dare challenge the insurance companies’ policies on patient care.” to read the complete article view:

http://drhotzeblog.netymology.com/2007/07/23/rein-in-the-texas-medical-board/

MaryMargaret, Houston CFIDS Member and OASIS Consultant (see “Speaker” information), contributed this piece in response to another member’s difficulty at work.

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The criteria for determining disability for the Social Security Disability Insurance (SSDI) is different from that used to determine disability for the purpose of job accommodations under the Americans With Disabilities Act (ADA).

A person may qualify under the ADA for job accommodations but still not receive SSDI. For example, many people in wheelchairs or who are blind or deaf work rather than receive SSDI, and do require job accommodations.

Applying for SSDI

When applying for SSDI, it is imperative to have an attorney’s assistance. There is no charge for the service until the case is won. Law limits how much the attorney can collect from you after the case is won. You will also need a credible doctor(s) and possibly other professionals on your team.

Requesting Job Accommodations Under the ADA

When requesting job accommodations, it is imperative to utilize organizations such as those listed below. You usually need just one of these organizations unless they advise you otherwise. This advocacy organization won’t charge you any money and becomes a part of your team of professionals who assist you in acquiring job accommodations. You will also need a credible doctor(s) and possibly other professionals on your team.

• Advocacy, Inc.
• ILRU
• Houston Center for Independent Living (HCIL)
• Equal Employment Opportunity Commission (EEOC)

A Word of Advice

It is best to bring your boss and coworkers along with you rather than establish an oppositional stance with them. This may seem obvious, but can be more difficult than it sounds, especially with hidden disabilities that they may not understand.

Even within the world of disability advocacy itself, sometimes you may encounter built-in prejudices against people with hidden disabilities on the part of people with visible disabilities. Do your best to keep all these people on your side of the table.

Having advocacy organizations trained in how to present the information to your employer in a non-alienating manner is vital to your ultimate success. You always want to be seen as a valuable employee that people want around who just happens to have a disability.

CFIDS and related conditions can put us in a place where what we show is our frustration or anger. We must work against that. Counseling is very helpful as a place to vent and discuss your frustrations; it may even very likely save you your job.

MaryMargaret Lytle

Houston, Texas
October 2007