I've brought you several articles about your rights at work as a person who may be disabled by Migraines, and the protections afforded you under the ADA (Americans with Disabilities Act) and the FMLA (Family Medical Leave Act). From some of the comments it has become clear to me that many people feel that having the laws in place is not enough to make their employers understand or behave appropriately, or put more crudely, having the laws in place is not enough to solve all our problems. To which I have to reply, you're right. It's not enough.
Even though getting laws like this on the books is a triumph and the result of long years of advocacy and struggle, it is still the very beginning when it comes to changing the way our lives look. Women got the vote in this country in 1920, but real equality for women in employment and opportunities did not begin to emerge until the last decades of the 20th century, and we're still behind. In Brown vs. Board of Education the Supreme Court ordered the desegregation of our schools in 1954, and racially segregated schools are still a plague on equality of opportunity in our society. Having ADA and FMLA in place makes some difference to us now, but it will not automatically change our lives or solve our problems. Laws are only the beginning. We have to take action to enforce them.
Sorry to be leading with the bad news here. I know if you're struggling with the pain and disability of Migraine disease, and struggling to stay at work in spite of them, you don't want me telling you about more struggle ahead. The way these laws work, though, is that the more people take steps to enforce them, the more employers will comply with them. And if your employer does not comply, and you do nothing, you don't even have a chance of getting the help you need. You can help yourself, and help make these laws stronger at the same time.
How do you help yourself? Here are some tips, from soup to nuts.
Asking for the help you need at work:
Don't assume your Employer knows about your illness. Be ready to talk about how Migraine affects you, how you can best get your job done, what accommodations might help you.
Choose the right time to talk about it. Don't create problems where they don't exist - there's no reason to insist on accommodations before you need them. By the same token, don't wait until Migraines are already impacting your job performance.
Have facts to share. Get information about Migraine disease from this site, the Alliance for Headache Disorders Advocacy, your doctor, or other credible source, and share the facts about this disease with your employer. Don't let it be about their beliefs versus yours.
Don't assume your Employer knows the law. Be prepared to give them facts about ADA and FMLA. Even your HR department may not know how the law applies!
Protecting your Rights:
Keep a record. What happened in the workplace, when, who you talked to, what they said. This applies both to incidents where you had a Migraine and needed to call out, go home, or ask for other help, as well as to any conversations or company action with regard to ADA and FMLA.
If they say no, get legal help. Under ADA, you must file a charge with the EEOC (Equal Employment Opportunity Commission) within 180 days of the date of the "alleged violation." FMLA is enforced by the Wage and Hour Division of the Employment Standards Administration of the U.S. Department of Labor. You can file a complaint on your own behalf with either agency - your chances of success are better if you get an attorney.
Getting Legal Help:
- Don't be afraid to call a lawyer! This is the step many people don't want to take. Please remember that consulting an attorney does not commit you to anything. It will not make you lose your job. The attorney can't take any action on your behalf without your approval. Most attorneys will do an initial consultation, where they give you a sense of your rights and what action they could take for you, for low cost. Some attorneys will take cases on a contingency basis, where their payment is a percentage of the eventual settlement or award they win for you. Seeing an attorney does not mean you have to file a complaint or sue your employer. You may decide to do that, but sometimes just a letter or a phone call from an attorney may be enough to influence an employer to comply with the law.
- How do you find an attorney? I recommend calling your state, not city or county (unless you live in a very large city), bar association and asking for names of attorneys who specialize in disability discrimination in employment. There may not be anyone with this narrow a specialty right in your immediate area, but it is worth traveling a little to find someone with a track record. That said, if there isn't a specialist available, any good employment attorney can help you.
- Feel comfortable with the attorney. Make sure your questions are answered and that you understand the answers. Trust your gut - as with any profession, there will be attorneys with whom you are a good match, and others with whom you aren't. This isn't like choosing a best friend, however. If you are timid about asserting your rights, you don't want to choose someone who seems just like you, you want someone who will fight for you.
- Make your attorney's job easier (it will be less costly for you and produce a better result). Prepare for your appointments. Bring documentation. And don't assume that they understand Migraine disease either. Even if they are experienced in helping people assert ADA claims, you may need to educate them about Migraines.
~ To the extent this sharepost contains legal information, it is legal education, not legal advice. No attorney-client relationship is created. ~
© Megan Oltman, 2009
Last updated July 30, 2009.
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