I recently questioned the Director Of Human Resources of a large corporation, as part of my effort to prepare a case for trial. The case involves both disability issues (under the Americans With Disabilities Act) and leave issues (under the Family & Medical Leave Act). Over the course of the questioning, the HR chief and various HR employees repeatedly misspoke about my client’s rights under both the ADA and the FMLA. I don’t believe they were intending to deceive me or anyone else. They were just wrong. One HR official gave my client erroneous advice based on the pre-2009 version of the ADA, unaware that effective January 1, 2009, the law changed to require the exact opposite decision. Another said my client was covered by the ADA but not the FMLA, and wrongly denied my client critical FMLA benefits.
To be sure, employment laws can be confusing. But when it’s your job, and especially when others depend on you, you have to get it right. It’s a reminder that when you’re asking your HR department about your rights under various laws, it doesn’t hurt to double-check their answer. Bad advice is common in the area of disability-related and medical leave (e.g., who is disabled and who isn’t, who is entitled to leave and who isn’t, what confidential medical information has to be disclosed and what doesn’t – the list goes on and on.) In fairness to HR professionals, these topics involve complex laws and rules that are constantly changing, and most HR staff are not lawyers. Still, employees are entitled to answers that are one hundred percent correct.
What to do? My suggestion, if you’re in a situation where you need leave, or accommodation due to a disability, is to follow your discussion with your HR office with some basic research of your own. Review company policies. Do a Google search, using plain-English queries like, “Am I disabled under the ADA?”, or “Does my employer have to hold my job until I come back after surgery?”. Or, call a lawyer who specializes in employee rights. To be sure, you have to cross-check your Internet research, too. You might wind up at a site that is out of date, or that is written for employees whose rights may be different than yours. The state you’re in often matters. The kind of employer you work for matters, too. Or, the site might also just have advice that is completely wrong. (I loved an email that passed around this week “quoting” Abraham Lincoln as saying that you can’t trust everything you read online.)
But the more sources you consult, the more likely it is that you’ll come to the right conclusion.
Categories: Disability Discrimination, Family & Medical Leave Act Of 1993
Jim Garrity, Esq. - Employee Rights Lawyer 
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