July 2, 2025 • 49 mins
Navigating the workplace while managing inflammatory bowel disease can feel like walking a tightrope—balancing health needs against career responsibilities. This episode cuts through the confusion with straightforward, practical advice from someone who truly understands both sides of the equation.
Employment attorney Abbe Feitelberg returns to share her unique perspective as both an IBD patient and legal expert. She breaks down the Family Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) in clear, accessible terms that empower you to advocate for yourself in any workplace situation. From understanding which companies must comply with these laws to learning exactly what paperwork you need, Abbe demystifies the process of securing your workplace rights.
The conversation explores common misconceptions, like believing managers need detailed medical information (they don't!) or that requesting accommodations might hurt your career (it shouldn't!). You'll discover practical strategies for maintaining privacy while getting the support you need, whether that's intermittent leave for treatments, flexible scheduling during flares, or immediate bathroom access. Most importantly, you'll learn how to document everything properly to protect yourself if issues arise.
What makes this episode particularly valuable is how it addresses real-world scenarios: When should you disclose your condition? What happens if your accommodation request is denied? How do you balance transparency with privacy? As Abbe points out, "These protections exist to help you succeed—never be afraid to ask for what you need." Whether you're currently employed, job hunting, or supporting someone with IBD, this episode provides crucial knowledge to navigate workplace challenges with confidence and dignity.
Links:
- Abbe's first episode with us
- US Equal Employment Opportunity Commission
- Info on the Americans with Disabilities Act
- Info on the Family Medical Leave Act
- Employee and Employer resources- Crohn's & Colitis Foundation- USA
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Hi, I'm Alicia and I'm Robin and you're listening
to Bowel Moments, the podcastsharing real talk about the
realities of IBD.
Serve on the rocks.
Speaker 2 (00:12):
This week we bring back Abby Feidelberg.
In addition to living withinflammatory bowel disease,
she's also an employmentattorney that works in human
resources.
We talked to her all about theFamily Medical Leave Act and the
Americans with Disabilities Act.
This is great information forpeople living with IBD or
parents of children with IBD,and we know you'll learn as much
as we did.
Cheers.
Speaker 3 (00:35):
Hi everybody, Welcome to Vowel Moments.
This is Robin.
Speaker 1 (00:38):
Hi everyone.
This is Alicia and we are soexcited to be joined once again
by Abby Feidelberg.
Abby, welcome back to the show.
Speaker 4 (00:48):
Thank you so much for having me back.
Speaker 1 (00:50):
We are very excited to get into why we're going to
talk to you, because it is for avery specific reason, but we're
, of course, starting it outwith our very unprofessional
question of what are youdrinking?
Speaker 4 (01:00):
I am drinking water because things over here are
very exciting Water.
Speaker 1 (01:04):
Water.
Water is necessary and vital,and I suck at drinking it.
So good job, well done, robin.
What about you?
Speaker 3 (01:12):
I am also drinking water, as you know, but today I
have a very special drink Friendof the show, stacey Collins.
Also, my dietician sent me alittle care package in the mail
because I'm having a proceduredone next week and there was
some chamomile peppermint tea inthere and some honey.
And so I'm drinking chamomilepeppermint tea from Stacy.
Speaker 1 (01:33):
Oh, stacy, that's so sweet.
Well, I am drinking.
It is spirit free cocktail andit is a sidecar mimosa, so it's
some sort of like hang on.
It is a sidecar mimosa, so it'ssome sort of like hang on.
I need to be wearing glassessparkling blend of orange and
lemon with hints of brandy andbitters, so that is what I'm
drinking today.
Speaker 3 (01:52):
Is it an adaptogen?
It says a spirit-free cocktail.
So no actual brandy, just hintsof brandy, Just tastes of it.
Okay, yeah, no, there's noalcohol in it.
Speaker 1 (02:05):
No, no alcohol in it.
Okay, just one.
No, there's no alcohol in it.
No, no alcohol in it.
Lovely Right, fun Cheers, ohyeah, sorry, cheers, everybody
Cheers, okay.
Speaker 4 (02:11):
Next question for you is remind us what you do as a
profession, because that is thereason that we have you on the
show, so I do a lot of things asa profession, but the reason
that you all want to talk to metoday is I am in-house counsel
for employment and compliancematters for my organization,
which includes oversight on ourleave of absence compliance as
(02:35):
well as.
Speaker 1 (02:35):
ADA.
It was so beautifully concise.
I love it.
Yes, you are 100% right.
The reason we want to talk toyou is not just because you're a
glorious person and we enjoyour conversations with you, but
also that you do have thisprofessional knowledge that we
think is very valuable for therest of the community.
Speaker 3 (02:49):
You just said leave the leave policy.
So can you give a quick anddirty explanation of what FMLA
is?
Speaker 4 (02:57):
So the quick and dirty on FMLA is it is the
Family and Medical Leave Act.
That's what those letters standfor when we think about FMLA.
That is a federal entitlementto employees or companies that
employ 50 or more people at aspecific site or
organization-wide.
(03:18):
It entitles you to up to 12weeks of leave in a 12-month
period for care for your ownmedical condition or care for a
family member with a coveredmedical condition.
There is a new-ish developmentwith who is considered a covered
family member.
Siblings have not generallybeen covered and are not lined
(03:38):
out, but there have been courtcases recently that have
indicated that if you care for asibling in the way that a
parent child would care for eachother, you may be eligible for
leave under FMLA to care for asibling as well for their
serious medical condition.
Speaker 1 (03:54):
It's my understanding and, granted, you're going to
tell me when I get this wrong,it's my understanding of FMLA is
that, yes, you are entitled toleave and it protects your job,
but it doesn't necessarily meanthat there's payment.
It's not like you get paid tobe gone for those weeks.
Is that correct?
Speaker 4 (04:09):
That is correct.
So you can use if you accruedsick time or paid time off under
your organization's policies orif you are in a state that
provides sick time, which ishappening more and more
frequently you can run thatconcurrently.
So if I'm taking six weeks ofleave under FMLA and I have six
(04:29):
weeks of PTO, I can be paid forthat.
In some instances you may alsoif your organization provides
short-term disability thatprovides for partial payment of
wages, those can also runconcurrent.
So your short-term disabilitymay pay you up to your coverage
amount for the time that you'reoff under an approved FMLA.
Speaker 1 (04:47):
Okay, that is helpful .
Now, is it that your actual jobis protected, or is it that any
job is protected, like ifyou're gone for six weeks and
they need to fill your job andthey happen to fill your job
with a temp employee or they putsomebody else in your job, can
you come back to the same job?
Or would it be just like thatyou have a job at the
organization that's comparable.
Speaker 4 (05:08):
So the interesting thing about FMLA is that you are
entitled to be returned to thesame role.
That means that they can't makeany substantial changes to your
role.
So one of the things that comesup in organizations that are
multi-site is can we staff themat another location If that
other location wouldsubstantially increase
somebody's commute time?
That's not considered the samerole, even if functions are the
(05:32):
same and reporting structure isthe same.
So you really are entitled tobe returned to your same role.
So if your organization iscovering a business need while
you're on protected leave, theyneed to make sure that your role
is available for you when youare ready to return.
Speaker 3 (05:48):
I'm going to jump in real fast.
I'm sorry, alicia, because whenyou gave part of your
description before, you said anapproved medical leave, so could
you go into that a little bit?
Yeah, so.
Speaker 4 (06:02):
FMLA applies to your own serious health condition or
care for another with a serioushealth condition.
So you're not going to go onFMLA because you've had the flu
for one day.
Fmla is generally sought bypeople that either have a
chronic condition that requiresongoing treatment or if you're
hospitalized for any reason foran overnight.
(06:22):
So any period of time whereyou're admitted to a hospital
overnight is generally going toqualify you to seek leave under
the FMLA, and the reason thatyou would do that, even for that
short period of time, is thoseabsences from work would not be
subject to discipline under anattendance policy.
So there's actually twodifferent kinds of FMLA that
(06:43):
that brings up.
There's intermittent andthere's continuous.
So you're entitled to 12 weekstotal in that 12 month period
that I mentioned.
If you were in the hospital,say, for four days, and you
apply for a continuous period ofFMLA to cover those four days,
you have your FMLA approved forthose four days and then you
have the remainder of that 12weeks available to you.
(07:04):
If you have any other instances, you would need to apply again
If you're looking at FMLA for achronic condition that requires
ongoing treatment, like I haveCrohn's disease, if I need off
for my appointments and don'twant to have to submit a note
for that or be concerned aboutattendance occurrences.
I am eligible for 12 weeks ofleave to be used throughout that
(07:25):
12-month period for carerelated to my serious health
condition and that would be anintermittent leave.
Your healthcare providersubmits paperwork for that
explaining your condition.
It explains whether it issomething that is like that
brief overnight in the hospitalor whether it is a chronic
condition that will requireongoing care.
They do fill out information onfrequency and duration of
(07:48):
absences for that ongoing careif necessary.
So if you have a condition thatmay flare up, they may take a
guess at how many days that mayimpact you on a monthly basis If
you have scheduled appointments.
They would indicate that All ofthat gets submitted generally
to a company's HR department ora third-party administrator, so
it's not going directly to anemployee's manager, so they're
(08:09):
not getting all of thatbackground information.
Speaker 1 (08:11):
Thank you, that was going to be.
My question is, yeah, like howmuch information do people see
on your medical condition?
So it sounds like managers yourdirect manager doesn't see it,
only the HR person, if there isan HR person.
Speaker 4 (08:24):
Yeah, I generally encourage employees to go
directly to a benefits team orthe human resources department
in your organization.
We actually discourage myorganization managers from
asking for anything.
So what we tell them is if youhave an employee who says to you
I missed a bunch of workbecause we've trained them on
(08:45):
when someone should be directedto apply for leave of absence,
we don't want a manager havingall that information because it
poses problems if they do needto discipline them for something
else, but we also don't wantemployees feeling that they have
to share all of that with amanager with regards to an
underlying health condition.
That can make them feel likethey may be treated unfairly.
Speaker 1 (09:03):
Yeah, that makes a lot of sense.
I was going to say do you trainyour managers to just stick
their fingers in their ear andsay la, la, la, so they can't
hear anything?
Because, yeah, it's hard.
Because I mean, you want to behonest, I'm sure as an employee,
and you have a goodrelationship with your boss, or
you have a good relationship,I'm sure you want to be honest.
But I agree with you, you kindof also need to protect yourself
.
Speaker 4 (09:22):
We have trained our leaders to say I appreciate your
sharing that with me.
I'm going to have you speakwith benefits or I'm going to
have you speak with humanresources, because they're going
to be the people in the bestposition to get you the
information you need.
So we're not telling them tolack compassion when something
is being shared with them, butwe're also giving them direction
to not probe.
Speaker 1 (09:42):
So you're saying my fingers in the ears, la, la, la
is lacking compassion, abby itmay not be the most
compassionate response.
Speaker 4 (09:52):
You know they may appreciate the happy tune you're
singing to them, but there maybe a different way you want to
approach that.
Speaker 3 (10:02):
That's fair, okay.
So a follow up to that is iswhat would you say are a couple
of like, maybe the biggestmistakes employees make when
using their fmla because, likeyou said, maybe not tell it to
your manager, maybe go straightto hr.
Like, what are the biggestmistakes that you see that
employees might make when tryingto use their fm?
Speaker 4 (10:22):
So the first mistake actually happens before they're
approved for FMLA.
There are timelines when yourequest FMLA that you need to
provide paperwork back, eitherto your human resources benefits
team or if your company uses athird-party administrator.
The biggest mistake is peopledon't provide the follow-up
documentation and they don'tcommunicate why.
Most organizations and this isagain under court guidance want
(10:44):
to be reasonable for employees,so there is a 15-day time period
to return that paperwork.
If my physician's office isreally backed up and says we
have a three-week turnaroundtime, if that's communicated
they're likely going to extendthat deadline.
But not turning in paperwork isthe biggest mistake.
Before you even get to approval.
Once FMLA is approved, peoplerun into challenges because
(11:08):
they're not keeping track oftheir time.
That 12 weeks needs to beaccounted for and it's accounted
for out of fairness foreveryone.
You get 12 weeks total.
So if I use six weeks for myhealth condition and then I have
to care for a parent with aserious health condition, I only
have six weeks left, and so wewant to make sure that we're
handling everything fairly.
Not accounting for that timecan be really challenging,
(11:30):
particularly with intermittentleaves, if you are in an hourly
role where you are scheduledversus an exempt role where
you're salaried and you justhave your schedule as you set it
.
It's very challenging foremployers to plan around that,
and, while they can't disciplineyou for it, they can get very
frustrated if you have knownappointments and are not giving
(11:51):
advanced notice, and so thereare things that your employer
has to do for you.
On FMLA, there are also thingsthat make you sort of a good
consumer of FMLA, and it is thattimekeeping.
It is that advanced notice wherepossible.
It is following call-outprocedures.
We can't discipline somebodywho can't come in and they have
approved intermittent FMLA forusing that time, but there can
(12:15):
be discipline if you're notfollowing those call-out
procedures.
You still need to follow all ofthose rules that are in place
for your workplace and I thinkall of that really just comes
down to communication.
It is frustrating for employerswho are trying to do the right
thing and it just puts up somebarriers to being able to
effectively use your time in theways that you need to.
Speaker 1 (12:34):
So I work for an organization that is too small
to have an FMLA to be covered byFMLA, but in past jobs I know I
had to use up all of the restof my leave before they would
kind of let me go start to useFMLA.
Is that a thing, or did I makethat up in my and just assumed
that was a thing that?
Speaker 4 (12:53):
is actually not accurate at all.
They can tell you if you'retaking FMLA you need to use your
PTO with it, but they can't sayyou can't get FMLA time until
you've used all of your PTO.
Some organizations will let youtake your FMLA as unpaid time
if you don't want to use all ofyour PTO for it, because it's
very hard.
We hear a lot about work-lifebalance.
(13:13):
I think more appropriately it'swork-life integration.
It's very hard when you'redealing with a chronic condition
, either your own or somebodyelse you're caring for, to feel
like you never have anopportunity to disconnect as a
person and all you ever get todo is address your health
concerns.
So a lot of organizations willallow you to take that as unpaid
time.
But your organization can sayyour PTO is going to run
(13:35):
concurrent or your sick time isgoing to run concurrent, which
is why a lot of companies arelooking at separate banks
because they want a positiveemployee experience to not say
all of your PTO is gone becauseyou have a health condition.
Speaker 3 (13:45):
This is going to be a curveball Abby, I'm sorry.
So if you don't know the answer, if an employee doesn't qualify
for FMLA for whatever reason,are there other alternatives for
them to take time off like this?
Speaker 4 (13:59):
So that is going to be company specific and to some
extent, jurisdiction specific.
So I mentioned that there arestates and localities that have
their own sick time provisions.
So even if an organizationdoesn't offer sick time, if it
is required by the state or thecity that the business operates
in, that sick time may still beavailable to them.
(14:20):
My company, for example, offerscompany medical leave.
To qualify for FMLA you have tohave worked 1,250 hours in the
previous 12 months and mostcompanies pursue that on a
rolling basis, not a January 1basis.
Both are valid, but most usethe rolling basis.
It's just easier.
If you don't qualify for that,there may be other leaves
(14:41):
available to you.
So our company medical leave isintended for people that have
not had a sufficient tenure withus and it is for a shorter
period of time.
It is not job protected.
So if we do have a businessneed, we can't backfill that,
but that's going to be specificto your organization's policies.
So I really encourage everybodywho is dealing with care for
their own condition or care foranother, when you start a new
(15:04):
role and probably annually whenyou review your company's HR
policies, really do a dig inthere and make sure you
understand what's available toyou and if something is not
clear, ask your human resourcesteam.
If you live in a state whereyou believe there is sick time
and you're not seeing itaccounted for on your pay stubs
or in your timekeeping, ask yourhuman resources about it.
(15:27):
Those are entitlements that youhave and so always want to make
sure that everybody does acheck on what's available to
them.
Speaker 1 (15:33):
So you mentioned that it's companies with 50 people
and above, or organizations with50 people and above.
Are there other companies orother ways that a company would
not be dictated to by FMLA?
It's like our federal agencies.
Does this work for them as well, or are there other places that
sort of don't have to followthis?
Speaker 4 (15:52):
So I am not entirely up on my federal agencies.
I will be very transparentabout that.
But you did remind me the otherspace that this covers is for
military caregiver leave.
So that falls under its own setof definitions of who is
covered under that provision toprovide leave.
But they are also entitled toFMLA for military purposes as
(16:15):
well.
The federal space is tricky andI don't want to speak
incorrectly to that.
Speaker 1 (16:20):
Okay, can we talk about ADA please at this point?
Do an overview please, if youdon't mind, just kind of giving
like the very like cliff notesversion of the Americans with
Disabilities Act.
Sure.
Speaker 4 (16:30):
So the ADA is a law that was enacted in 1990, and it
is intended to provide supportto individuals to perform the
essential functions of their job.
The people that are covered bythat are those that have their
own health condition impactingone or more major life functions
.
So where FMLA can be to carefor yourself or another, ADA is
(16:54):
specific to your own medicalcondition.
Speaker 1 (16:57):
Okay, perfect, I guess.
I'm curious like what?
How do you know that you're?
Whatever you're you're livingwith is a qualifying
quote-unquote disability, whenyou know when, in this case of
Crohn's or ulcerative colitis orsome other types of autoimmune
conditions, it kind of waxes, itwanes.
There are times where you mightbe more sick and not as sick.
So how would one know if theircondition is something that's a
(17:18):
covered medical condition?
Speaker 4 (17:19):
Yeah, that's a great question.
It is something that affectsone or more major life function,
and so when we think aboutsomething like Crohn's and
colitis that can impact multiplelife functions, it happens to
be a chronic condition thatrequires ongoing treatment.
It can flare up, it is lifelong.
All medical conditions are notcovered, so things like the flu
(17:43):
would not be covered.
Something like that is notgoing to be covered.
That's really transient.
For the purposes of Crohn's andulcerative colitis, we're
thinking about things thatimpact now and will impact one
or more major life functions,and that can include restroom,
that can include, if people haveassociated joint issues, things
like walking, the ability tosit or stand for extended
(18:04):
periods of time all of thosethings that impact somebody's
day-to-day.
Speaker 1 (18:08):
It's kind of the same question as FMLA how much
information do you have todisclose of your medical
condition in order for you toget accommodations?
Speaker 4 (18:17):
So the ADU paperwork is really interesting.
What your healthcare providerhas to certify is that you have
a condition that impacts one ormore major life functions.
They're generally not requiredto disclose what that condition
is.
What they're including in thatpaperwork is that you have
something, this is what itimpacts, and that this is the
accommodation they're asking forto be able to allow you to
(18:38):
perform the essential functionsof your role.
So for somebody with Crohn's orulcerative colitis, that may be
a certification that, yes, theyhave a condition.
It impacts their need for morefrequent restroom breaks, and
what they're asking for iscoverage and immediate
availability of a restroom whenneeded.
Speaker 1 (18:56):
So if you know you had a condition, you knew you
were going to need someaccommodations, but you didn't
quite know what thoseaccommodations are and you could
bring in, for instance, anoccupational therapist to kind
of say, okay, this is sort ofthe accommodation that could be
made.
Whose responsibility would itbe to pay for that professional
to come in and help?
Speaker 4 (19:14):
figure that out.
So yeah, it's a great questionof how you figure that out.
There is something in the ADAthat is legally required, called
the interactive process, andwhat that means is that if I, as
an employee, indicate that Ineed an accommodation, it's
helpful if I can suggest that,but it is not required.
Generally, somebody'shealthcare provider can make
some suggestions on their behalf.
(19:36):
When you're talking about whopays for it, it gets a little
bit more complicated.
It is generally on the employerif they are disagreeing with
what you've proposed to them,but usually most organizations
work cooperatively.
There's a really nice governmentresource called the Job Action
Network.
It's called JAN for short andit has kind of an encyclopedia
(19:58):
of most conditions that youcould think of and potential
accommodations to support them.
So it's a nice way if you'vegot somebody that doesn't know
what to ask for that an employercan go and spend some time
there as part of thatinteractive process.
The key piece of thatinteractive process is you do
really want it to be cooperative.
So if you're not understandingwhat somebody's healthcare
(20:19):
provider has indicated, you wantto go back and ask them.
You want to tell the employee.
I'd like to talk to yourhealthcare provider because I
want to understand what they'reasking for.
It really is a support foremployees and it is a way to
allow people to keep the jobsthat they were hired for, and
engaging in that process reallycan help people feel that
they've been heard and thatthey're not just being told this
is what you get.
Speaker 1 (20:40):
Great, yeah, I do think having that be an
interactive conversation makes alot of sense, I guess.
Kind of similar question islike if there was something that
was necessary to help somebodylike say, you know you have
arthritis secondary to yourCrohn's disease and you need a
special keyboard or voicesoftware that can help so you
can voice text essentially, orvoice you know type Again same
(21:04):
kind of question.
It's like if this is the thingyou need in order to do your job
, are you responsible forpurchasing it, or is that
something your employer would do?
If it is something that couldbe that requires to be purchased
, like a special chair, aspecial keyboard, whatever it is
, yeah.
Speaker 4 (21:15):
So all of those things are generally purchased
by your organization.
The keyboards and the chairsare kind of the easy ones.
If you need the ergonomickeyboard, if you need a headset
instead of a handset for a phone, if you do need the talk to
text software, those are alwayskind of the easy ones within
reason.
So if you as an employer comingback and saying I need the
Cadillac of chairs, youremployer can suggest something
(21:37):
that is a little more the Toyotaof chairs if it will accomplish
the same thing that yourhealthcare provider has
presented.
Speaker 1 (21:43):
Got it so like if you need a bathroom and there isn't
one nearby, you can't requirethem to like build you a
bathroom.
Speaker 4 (21:51):
You generally can't require them to build you a
bathroom, but there is probablya requirement that there be one
nearby and available to youanyway under some other lovely
estate building codes.
But that brings up the questionof what constitutes reasonable,
because the ADA is reallygeared towards reasonable
accommodations.
Speaker 1 (22:11):
What do they count as reasonable?
Who gets to determine whatreasonable is so?
Speaker 4 (22:15):
reasonable is a little bit of a tricky
determination.
What you are trying to avoid asan employer is undue hardship.
That's a pretty high bar.
What is not there on that baris a specific list of things
that you can say.
This definitely constitutes anundue hardship to me as an
employer, and the assessmentyou're making is would there
need to be a fundamental changeto your business operations is
(22:39):
kind of the key consideration.
And then is what the employeeis asking for is to remove an
essential function of their job?
The ADA does not require you toremove an essential function of
someone's job, and so a requestfor that is generally going to
be considered unreasonable andundue hardship.
As part of that interactiveprocess, we frequently at my
(23:00):
organization have people thatare requesting more frequent
break time for one condition oranother.
We are a healthcare organizationwith a one-to-one treatment
ratio, so there's somescheduling considerations there
and there's some billingimplications and we never want
to say no straight away.
So what we will do in thatinstance is let our employees
know that we're going toimplement their requested
(23:22):
accommodation on an interimbasis to understand how it
functionally plays out and whatthe impact is on our business
operations and if, after runningthrough that we do an
assessment and determine it ashaving a really negative overt
impact on our businessoperations.
That's a space where we wouldthen say, as the employer, we
don't feel that this is areasonable accommodation and we
(23:44):
would notify the employee ofthat.
We would usually give anopportunity to see if there's
something else that we might beable to try before we just
simply say we're unable toemploy you.
But the undue hardshipreasonable assessment is up to
the employer.
If an employee has anaccommodation denied, they do
have the ability to pursue thatthrough state agencies, through
(24:04):
the EEOC and through the courtsystem to say that their
employer did not engageappropriately in that process.
Speaker 1 (24:10):
I do think that's a key point to make is that a
reasonable accommodation for ajob isn't that you can't do an
essential part of the job, it'sthat you might need assistance
to do it, and I think that's thepart that sometimes people get
a little kind of confused about.
It's like you still have to beable to do the job the job as it
is and the essential pieces ofit.
(24:30):
It's just you might needsomething to help you do it, but
if you can't do an essentialpart of the job, then you're
just not qualified for the job.
Which kind of same thing forall the rest of us too.
Like if there's a big piece ofmy job I can't do, then I'm not
qualified for the job.
Speaker 4 (24:45):
Exactly so.
The ADA really says that youare able to perform the
essential functions of your jobwith or without reasonable
accommodation, and so you dohave to have the qualifications
for the job.
Speaker 1 (24:55):
Right.
Super helpful Knowing thatyou're not providing any sort of
legal advice right now, but, ingeneral, what is perhaps kind
of some of the best practicesaround when you might want to
disclose that you need areasonable accommodation as a
job applicant.
Speaker 4 (25:11):
So there's actually an interesting piece of the ADA
which indicates that reasonableaccommodations need to be
provided to somebody if theyneed them for support during the
interview process.
So you do have the opportunityto indicate that interview
process.
So you do have the opportunityto indicate that.
And most actually, I have notseen in recent history any
employer that as part of theirapplication doesn't ask a
(25:31):
self-identification questionregarding disability and,
companion to that, they provideinformation on who to contact if
you need support during theinterview process.
And that can be anything.
Let's say, if somebody was in awheelchair and was unable to
travel for an in-personinterview for a role that would
be remote, it would bereasonable to ask for that
interview over Zoom, all ofthose sorts of things.
(25:52):
It would be reasonable toindicate for somebody with
Crohn's or colitis, I need tohave a restroom available to me.
During an in-person interview,you don't need to indicate why.
And during the interviewprocess, somebody is generally
going to ask for lessdocumentation.
Indicate why.
And during the interviewprocess somebody is generally
going to ask for lessdocumentation.
Once someone has been offered arole, I think what I generally
recommend is, as soon as youbelieve you need something, it's
(26:12):
in your best interest to pursuethat process, because what it
avoids is an employer gettingfrustrated that you are or
aren't doing something.
It also avoids you feelingfrustrated in a new position and
it can give you some of thosesupports that you need straight
away.
We have employers from time totime that got really frustrated
if they didn't say this duringthe interview.
(26:33):
Well, they don't have to say itduring the interview.
There is no legal obligation tosay it during the interview.
There's no legal obligation tosay it.
After I've been workingsomeplace for five years, I
don't have to say it unless anduntil I feel like I need
something.
So at the point when you feellike you need something, I would
encourage people to reach outto their HR and their benefits
to ask how that process works.
(26:53):
The interesting thing about ADAthat's different from FMLA you
do not have to make a request inwriting If you as an employee,
say to your employer I need XYZbecause I have a health
condition, without telling themwhat that health condition is.
You've now put them on noticeand they should begin that
interactive process with you tounderstand what supports may be
(27:15):
available and may be reasonablefor you.
So you can really do that atany time, but I think as soon as
you know you might needsomething, it is in your best
interest to do that to preventany potential performance
management, prevent difficultiesin performing your job and
really avoid any of thatdiscrimination or retaliation
that can happen.
Speaker 1 (27:35):
Great, Thank you.
I guess that does bring up adifferent question, though,
because you're right, the timesI've looked for jobs there is in
the application process thelike are you somebody that's in
a protected class, essentially?
So what happens if you don'tdisclose at that moment?
Speaker 4 (27:48):
If you, as an employee, do not disclose during
the interview process or at anypoint in time, you cannot be
punished for that.
They can't take performancemanagement action.
They cannot discriminateagainst you.
None of those things canlegally happen.
When I say they can't, itdoesn't mean that it doesn't
happen.
It means that it can't legallyhappen.
And so if you're notcomfortable disclosing that
(28:10):
during an interview process, youdon't have to do that.
If there's no accommodationthat you need during the
interview process, if you arelooking at a role and don't
think you would need anaccommodation, or if you just
don't want to disclose it atthat point, you don't have to do
that.
Speaker 3 (28:25):
Are there any best practices or tips that you have
for disclosing or not disclosingyour chronic illness at work or
during the hiring process?
Do you have any recommendationsabout that?
Speaker 4 (28:38):
I recommend being reasonable.
If you are looking at a roleand you reasonably believe that
you may need an accommodationonce you've begun employment, I
really suggest that you have aconversation before, and that
doesn't necessarily need to beto your manager.
That can be directly to HRbecause, again, we want to limit
and protect the amount ofinformation that managers are
(29:00):
getting.
You can say to a manager I havea health condition and because
of that I think that I may needsomething.
Who do I speak with?
I think you're asking questions.
I think you want to be cautiousof oversharing.
And it's not because we'refighting the conditions that we
have.
None of us are embarrassedabout them.
(29:22):
They are a wonderful part ofwho we are.
It's us are embarrassed aboutthem.
They are a wonderful part ofwho we are.
It's because we want to makesure we're not giving
information to people that don'tneed to have it in a way that
isn't going to support us in ourrole.
I think talking to a healthcareprovider and understanding if
they're familiar with thatprocess.
So if I speak with my GI andsay here's what I'm looking for,
can you help me?
Most healthcare providers wantto support their patients.
(29:44):
They understand that we want togo to work, we get the
treatment we get and we do thethings we do so that we can be
the people we want to be.
And most healthcare providerswant to work through that
process and support you, and Ithink that most employers
genuinely want to do the rightthings for their employers.
So I think, being transparentwith the right people, being
reasonable about what you'reasking for it is probably not
(30:06):
going to be reasonable if youwork in an hourly setting to
indicate that you are going toneed to be off four hours a day,
five days a week that's veryhard for an employer to schedule
around, and so you want to bethoughtful.
It doesn't mean you're notasking truthfully for what you
need, but you want to make sureyou're not over asking for
things you may not need.
And then the other space isthat accommodations can be given
(30:28):
for chronic lifelong conditions.
They can also be on a temporarybasis, so you may have one set
of accommodations regularly.
So again that restroom accessor additional breaks if you're
experiencing a lot of fatigue ora later start time.
If your medications are makingit tough for you in the morning,
you may have a different set ofaccommodations when you're
having a flare.
You don't want to abuse those,the same as we want to be
(30:51):
reasonable with any use of leavetime.
We don't want to abuseaccommodations because it just
means that for the next personthat asks it's going to be more
challenging.
Speaker 3 (30:59):
What about in a remote working environment?
Are there reasonableaccommodations?
Speaker 4 (31:05):
So within a remote working environment, reasonable
accommodations are really goingto hint on what you need.
So if you're working remote fora call center and you're
expected to be logged in to aphone system or into a computer
system that's tracking yourengagement, you may need to ask
for additional break time sothat you're not having an
(31:25):
accountability for metrics,you're not meeting for a number
of calls being handled per hour.
If you're in more of a salariedexempt role where you again
have a little more ownership ofyour calendar, if you need to
log in later on certain days orbe off for treatment or have an
accommodation that you can haveyour camera off, for example,
(31:47):
because you're able to workthrough treatment.
Those are reasonable things.
The other space I happen totravel a lot for my role.
It is reasonable to indicatethat you may need a specific
seat If your company's travelpolicy wouldn't generally allow
for seat selection.
If you need a specific seatbased on access to the restroom,
that would generally be areasonable accommodation, even
(32:08):
though there's an additionalcost to an employer.
Employers run into a lot oftrouble trying to deny
accommodation based on sayingit's going to cost us too much
and they need to do a lot oflegwork in order to make that
stand, and so things like seatselection could be reasonable.
If you can't travel, that couldalso be a reasonable
accommodation.
If your company requires, whenyou do travel, that you need to
(32:30):
share a hotel room, not doingthat is generally going to be a
reasonable accommodation for you.
Speaker 1 (32:36):
You mentioned the EEOC and if you felt like you as
the employee needed to reportyour company or felt like that
something wasn't accommodated,Talk a little bit more about if
you were somebody who didn'tfeel like you were getting the
accommodations you needed or youfelt like you were being
discriminated against, kind of.
How would you best prepare tobe able to kind of make your
case?
How do you kind of set yourselfup for the best experience or
(32:58):
response from something like theEEOC?
Do you start with the EEOC?
Are there other places?
Speaker 4 (33:03):
So generally you need to go through a state agency so
Human Rights Commission for thestate and you joint file with
the EEOC.
In most states You're filingone complaint and it's covered
by both agencies and you need towork through that process
before you're able to sue incourt.
What I really recommend is keepall of your documentation, and
(33:26):
so it's really easy to use yourwork email to go back and forth
or do things over Teams or Slackor whatever your organization
uses to go back and forth withthose messages.
If you're someone that yourcompany says we can't
accommodate you, you've now lostaccess to all of those things
and have to work with anattorney to request them, and so
when you're working through anaccommodations process, I
(33:48):
generally would guide that youdo that through your personal
email.
You have the same emailresponse time, but you have all
of that documentation and it'shandy for you.
I would also make notes.
So if you have a verbalconversation with your benefits
or your HR team or your manager,make notes of the dates and
times that you had those.
Make notes of who's present,and we never want to be working
through a process assuming thatsomething won't go well.
(34:10):
But this is also helpfulbecause there's often changes in
leadership and sometimessomebody that has an
accommodation in place thatdoesn't get communicated
appropriately and they say, no,I have this in place and I've
had it, and all the people thatwere on the other end of that
email chain are gone, and sokeeping track of all of those
things and retaining all ofthose things will help you, even
if you don't feel like youhaven't been treated unfairly.
(34:31):
But what you want to do is holdon to all of those things and if
you do feel like you've beendiscriminated against, either by
being denied employment, havingyour employment end or not
being promoted or considered inthe same way for merit-based
increases and all of thosethings, you want to have all of
that, and I really recommendthat you find an employment
(34:51):
attorney.
Traffic attorneys, criminaldefense attorneys, contract
attorneys all wonderful people.
There are so many nuances toemployment law.
You want to find somebody thatis very familiar with your
state's regulations.
You're also going to find thatsomebody that works in that
space is better able to ask youthe right questions to
understand what you'veexperienced and help you
(35:11):
understand if you do need topursue one of those complaints.
One of the biggest things thathappens is there are
miscommunications or there'spoor communication and it
doesn't always feel great, butthat doesn't always mean it's
something that you need to spendall the time and energy working
through one of those processesbecause they take a very long
time.
They're available for a verygood reason and they are to
(35:31):
protect people that have beentreated unfairly.
But really find an attorneythat works in that space and
they will help you understandwhat might be the best course of
action for you and youmentioned, you said, your state
agency and the EEOC.
Speaker 1 (35:44):
you jointly file.
If you file with the EEOC, willthey then file for the state,
or are you required to do both?
Speaker 4 (35:50):
That one's going to be specific to your state.
So it is specific to your stateof which agency you file with
and what is dual filing.
Most states operate under dualfiling now because it cuts down
on paperwork.
Many states are very, verybacked up.
So you need to file yourcomplaint within your state's
allotted amount of time.
After you believe thatsomething was improper, the
(36:13):
state will work through a bit ofa fact-finding process where
they will ask your employer oryour previous employer to submit
documentation.
You submit your documentationand then they work through a
process and determine if it is amatter that they're going to
take up on your behalf becausethey feel that a regulation or a
law has been violated, or ifthey're going to say we're not
(36:34):
making a determination, butyou're welcome to file in court
if you choose to do so.
Speaker 1 (36:40):
Okay, what happens if you file, you supply those
things, your employer suppliesthose things, and then they turn
around and say yeah, we don'tthink there's anything here.
Is there any protection againstdiscrimination after that point
or being fired after that point?
Speaker 4 (36:56):
So if you file a complaint with any state agency
and you're still employed withthat organization, if they take
any action against you based onyour having done so, that is
prohibited retaliation.
So there is an entire separatecourse of action for that.
What's really interesting isthat even if a state agency says
, or the EEOC says, the denialof the accommodation wasn't
(37:20):
discriminatory, if they takeaction against you they may
still find that what youremployer did was retaliatory for
your having filed thatcomplaint and that's actually
the harder space for an employerto defend against and it's
actually the biggest risk to anemployer.
So we always really encouragethat if a current employee has
filed a cause of action,everyone be on their very best
(37:40):
behavior because it's incrediblyrisky, but it is prohibited.
It is a legal retaliation.
Again, it doesn't mean itdoesn't happen, but it means
it's not legal and you have aseparate cause of action for
that.
Speaker 1 (37:56):
Okay, that's very good to know.
You said something aroundtreatment and time for treatment
, so that made me think of likegoing back to FMLA.
So bouncing back to FMLA say,you're on Remicade or one of the
Remicade biosimilars and youneed to get an infusion every
six weeks and it's half a daythat you need to go to the
infusion center and you might.
If you work remote, you mightbe able to work from there, but
if not, then you need to takeprobably half a day off.
Are you able to use FMLA forsomething like that because it's
(38:18):
a just ongoing treatment of achronic illness, or would you
need to?
Would that automatically belike sick leave because it's not
a full day or an overnight stay?
Speaker 4 (38:26):
So that is going to be the great place where
intermittent FMLA comes intoplay, and so that is where you
would let your employer know I'mscheduled for this half day off
.
Please do not schedule me forthis time.
And then you're able.
You don't actually even have totell them what you're doing.
You just need to tell them thisis the time that I will be off
and it is under my approvedintermittent FMLA, and then you
(38:50):
don't have to have a doctor'snote for your treatment.
You don't have to say to themlike here's where I'm going and
here's what time I'll be there.
You have that time off and theycan't schedule you, but you do
want to give them that advancenotice.
But that's really the mosttypical case for intermittent
FMLA is that and the conditionthat flares off, got it.
Speaker 1 (39:07):
I assume it's the same thing for, like, pelvic
floor physical therapy or ifthere's other types of
appointments that are treatmentrelated, yep.
Speaker 4 (39:14):
Anything that is related to the condition that
you have approved FMLA for iscovered under that.
So if you know about it andit's predictable, you want to
give advance notice.
If it's a flare and you don'tknow that it's coming, you want
to handle that the same way youwould.
As you know, I woke up thismorning with the flu and you
want to call and give as muchnotice as is reasonable given
your condition.
Speaker 1 (39:35):
Is there anything about FMLA that is specific to
somebody who would have a childlike as a parent of a child
living with inflammatory boweldisease?
Speaker 4 (39:45):
So a caregiver caring for somebody else's serious
healthcare condition is entitledto the same 12 weeks and is
entitled to use it the exactsame way as somebody who is
dealing with their own serioushealthcare condition.
So if you are a parent of achild with Crohn's or ulcerative
colitis and you need to takeyour child to appointments or
(40:07):
you need to stay home with themwhen they have a flare, any of
those things are covered in thesame way as an individual who is
dealing with Crohn's andcolitis themselves.
Speaker 1 (40:16):
I guess.
My question then is same thingwith Americans with Disabilities
Act?
Is there anything similar tothat when it comes to Americans
with Disabilities Act, when thissort of disabling condition is
actually your child's condition,that you're still protected in
certain ways because of havingthis disabling condition as part
of your life as a parent?
Speaker 4 (40:35):
So unfortunately, the ADA is specific to the
employee's own health carecondition.
It's not a protection thatexists because it really is
there again for you to performthe essential functions of your
role, and so, while you have theleave provisions, there's no
workplace accommodation for youbecause the individual with the
condition isn't performing therole.
(40:57):
Okay, got it.
That makes a lot of sense.
I think what's really importantis that, while it can feel
really hard to tell youremployer I have a thing, or I
care for someone with a thing,or I need something, these exist
to protect employees.
These exist to allow you to beable to do your job in the best
way and not be worried about Idon't have a doctor's note or
(41:19):
I'm going to be disciplined forattendance, or it's a challenge
for me to do something and Idon't want to ask.
It doesn't always feelcomfortable and, again, it's not
because we have any level ofembarrassment about what we live
with each day.
I'm really proud of havingCrohn's disease and I'm proud of
the life I live with it.
That doesn't make it any easierto ask for things, and so I
(41:42):
just always want people to knowthese exist to protect you and
so work through the process thatyour company has, ask the
questions you need to ask,figure out who the right people
are to talk to and do what worksbest for you, and you don't
have to do it again.
You know you don't have toapply for intermittent FMLA if
your role allows you thatflexibility and you don't need
(42:02):
it If you have a role thatdoesn't have that.
You want to apply for it whenyou're eligible for it because
it's there for you to use.
It doesn't mean you have to useit, it doesn't mean you're
necessarily going to use it, butit means it's there for you if
you need it.
And I think that's reallyimportant for people to
understand that these areprotections and these are things
that are there to help you?
Speaker 1 (42:21):
Yeah, I think that's really important.
I was curious, when you weretalking about your job and being
proud of doing your job withyour Crohn's, what happens if
you're the person who is theperson that's supposed to be
getting the paperwork foraccommodations, or your boss is
the person who is going to seethe things that are typically
more confidential information.
(42:42):
How does that work?
It's a great question.
Speaker 4 (42:44):
Some companies that are big enough have a
third-party administrator, sothere's lots of different
organizations that will managethat process and it takes the
employer out of seeing any ofthat because it's submitted
directly to them.
Generally, people in HR knoweverything about everyone all
the time and we just pretend wedon't in most situations.
(43:07):
And so if you're the personthat would generally review that
paperwork, you're going to wantto front that to your company,
that I need something, reviewthat paperwork.
You're going to want to frontthat to your company, that I
need something.
And your company will eithersay, sure, because we don't know
what we're looking at, becauseyou're the person who looks at
it, we're just going to trustyou.
They may have an outside lawfirm on retainer that will
(43:28):
review what you're looking atand say, yes, this is reasonable
and they will document that foryou.
But we generally within thepeople space are used to seeing
some of everything and there'sreally no judgment.
But again, if your boss is theperson that that paperwork goes
to, your boss should know wellenough that they're not going to
(43:49):
treat you unfairly or react toyou in a way that's not
appropriate.
And if that happens, then youwant to look at that retaliation
space for having sought illegalprotection.
Speaker 3 (44:00):
I really appreciate how thoughtfully you answered
the question, because I'm thekind of person that and I've
said this on the show before,but it's been a long time since
we've talked about anything likethis job hunting,
accommodations I'm not quietLike I don't hide the fact that
I have Crohn's, because,honestly, I I don't have the
energy to work someplace thathow do I phrase this?
(44:23):
I don't have the energy to worksomeplace that is not going to
work with me or haveaccommodations for me or make it
challenging for me.
I already have, I've alreadytested my resilience factor a
million times.
I don't need to be any moreresilient.
I already have enough going onand I just, you know, want to do
my job and I don't want that tobe a factor.
But sometimes I need people toknow what's happening, and so I
(44:47):
usually just am upfront rightfrom the start, because if I get
any kind of pushback orhesitancy, I know that that's
not a place, space I want to bein, because I'm not going to be
able to perform at my highestlevel.
Speaker 4 (44:58):
So it's interesting that you say that I have some
things I've done with theCrohn's and Colitis Foundation
and Team Challenge on my resumebecause I like to share, or I
have community involvementbecause I think it helps speak
to who I am.
If you run a quick Googlesearch, those things show up.
So it's nothing that I'm hidingand I I try to front it in that
way.
But I did something reallyinteresting.
So my CEO knows that I haveCrohn's disease and I don't know
(45:22):
that he knew quite what thatmeant or quite the impact it had
on my life.
And so, after you all had me onso graciously last time, I sent
him the link and I just sent itand say, hey, I just want to
share this with you, it'ssomething I did and it's
something I shared.
And I just sent it and say, hey, I just want to share this with
you, it's something I did andit's something I shared and I
just wanted to share it with you.
And he listened to it.
(45:42):
He was driving for quite awhile between some of our
locations and he texted me andsaid I had really no idea what
you live with on a day to dayand I don't think that most
people would, and I think thatwhen I think about our community
of people with chronicillnesses, we just do.
We do what needs to get done,we do it in the ways it needs to
(46:02):
get done and we very rarelywant to ask for help.
Speaker 3 (46:05):
I never want to ask for help.
I never want to ask for help.
Speaker 4 (46:10):
It's hard.
It's hard and it doesn't feelcomfortable, and for some of us
it sometimes feels like myillness is winning if I have to
ask for help, and we don't wantto do that.
And so to have the opportunitythat you all provided to be able
to share with somebody that Ihave a very strong professional
relationship with and give himsome additional insight into all
(46:31):
the things I get done for himand for our organization and for
our employees, regardless of,in spite of, and sometimes
because of, my experiences, wasreally really impactful, and so
I think there are ways to share.
When you feel comfortable doingit, that can be really
meaningful.
But no, we, we don't want tohave to go through more, we
don't want to have to justifywhy we're just trying to come to
(46:53):
work, and so I think the waythat you think about it not
putting yourself in a situationand being able to say this isn't
the right space for me, becauseI see how you're engaging is a
tremendous level ofself-awareness, and there are so
many employers that want tomake it the right place for
their teams, and when you can dothat as an employer, you have
an employee that feels heard andvalued and feels that somebody
(47:16):
wants them there, and that'soften going to be the person
that shows up in the best wayfor you.
Speaker 1 (47:30):
I love that.
That's beautiful.
Disability or a chronic illnessthat does potentially impact
their life in certain ways thatactually, when you look at the
statistics of attendance andperformance and longevity of
these employees, these tend tobe really fantastic employees.
They tend to be employees thatwork really hard, have good
performance and tend to be veryloyal to the company.
(47:54):
That is kind of loyal back tothem.
I think that that is what I'veseen in other things, but
correct me if I'm wrong.
Speaker 4 (47:59):
Nope, not wrong at all.
And I think as somebody andRobin, I'm sure you can also
speak to this Like, when I starta new job, I have all of the
concern of you know, are all ofmy healthcare providers covered
under my health insurance planand I run all of that benefits
check before I start and so allof those things that cause angst
when you're in a new role.
(48:19):
When you've worked through allof those and you feel
comfortable where you are andyou know that you are able to do
your job in the right way andyou know that if you need
something it's there for you.
You don't want to leave and gosomewhere else because you've
built that and you've built thatfoundation and you've built a
space where you know you cansucceed.
As long as that environmentremains stable and supportive in
(48:40):
the ways that you need and theways that you've sought out,
there's not a reason to lookelsewhere because you know where
you fit in an organization.
Speaker 1 (48:48):
Abby, final question for you.
We typically ask what's yourone piece of advice to the IBD
community, but in this case, ofall of these things we talk
about, what is the kind of keytakeaways from our conversation.
Speaker 4 (48:58):
I think really never hide from what you have and
never be afraid to ask for thehelp that you need, and don't be
afraid to raise your hand ifyou don't feel like you're being
treated fairly.
It's so important that all ofthese things and all of these
processes are there.
That doesn't mean everybodyfollows them, and so if you feel
like something is wrong, asksomebody.
(49:19):
If you feel like you're notgetting what you need, ask
somebody.
But I think it really all comesback to just don't ever hide
from what you have that makesyou amazing and gives you
experiences that make you such avaluable asset to others.
Speaker 3 (49:32):
Thank you, abby, so much for coming back on the show
and sharing all of your wisdomand learned experience with us.
Thank you everybody forlistening and cheers everybody.
Cheers.
Speaker 1 (49:44):
Cheers.
If you liked this episode,please rate, review, subscribe
and, even better, share it withyour friends.
Cheers.
Hi, I'm Alicia and I'm Robin and you're listening
to Bowel Moments, the podcastsharing real talk about the
realities of IBD.
Serve on the rocks.
Speaker 2 (00:12):
This week we bring back Abby Feidelberg.
In addition to living withinflammatory bowel disease,
she's also an employmentattorney that works in human
resources.
We talked to her all about theFamily Medical Leave Act and the
Americans with Disabilities Act.
This is great information forpeople living with IBD or
parents of children with IBD,and we know you'll learn as much
as we did.
Cheers.
Speaker 3 (00:35):
Hi everybody, Welcome to Vowel Moments.
This is Robin.
Speaker 1 (00:38):
Hi everyone.
This is Alicia and we are soexcited to be joined once again
by Abby Feidelberg.
Abby, welcome back to the show.
Speaker 4 (00:48):
Thank you so much for having me back.
Speaker 1 (00:50):
We are very excited to get into why we're going to
talk to you, because it is for avery specific reason, but we're
, of course, starting it outwith our very unprofessional
question of what are youdrinking?
Speaker 4 (01:00):
I am drinking water because things over here are
very exciting Water.
Speaker 1 (01:04):
Water.
Water is necessary and vital,and I suck at drinking it.
So good job, well done, robin.
What about you?
Speaker 3 (01:12):
I am also drinking water, as you know, but today I
have a very special drink Friendof the show, stacey Collins.
Also, my dietician sent me alittle care package in the mail
because I'm having a proceduredone next week and there was
some chamomile peppermint tea inthere and some honey.
And so I'm drinking chamomilepeppermint tea from Stacy.
Speaker 1 (01:33):
Oh, stacy, that's so sweet.
Well, I am drinking.
It is spirit free cocktail andit is a sidecar mimosa, so it's
some sort of like hang on.
It is a sidecar mimosa, so it'ssome sort of like hang on.
I need to be wearing glassessparkling blend of orange and
lemon with hints of brandy andbitters, so that is what I'm
drinking today.
Speaker 3 (01:52):
Is it an adaptogen?
It says a spirit-free cocktail.
So no actual brandy, just hintsof brandy, Just tastes of it.
Okay, yeah, no, there's noalcohol in it.
Speaker 1 (02:05):
No, no alcohol in it.
Okay, just one.
No, there's no alcohol in it.
No, no alcohol in it.
Lovely Right, fun Cheers, ohyeah, sorry, cheers, everybody
Cheers, okay.
Speaker 4 (02:11):
Next question for you is remind us what you do as a
profession, because that is thereason that we have you on the
show, so I do a lot of things asa profession, but the reason
that you all want to talk to metoday is I am in-house counsel
for employment and compliancematters for my organization,
which includes oversight on ourleave of absence compliance as
(02:35):
well as.
Speaker 1 (02:35):
ADA.
It was so beautifully concise.
I love it.
Yes, you are 100% right.
The reason we want to talk toyou is not just because you're a
glorious person and we enjoyour conversations with you, but
also that you do have thisprofessional knowledge that we
think is very valuable for therest of the community.
Speaker 3 (02:49):
You just said leave the leave policy.
So can you give a quick anddirty explanation of what FMLA
is?
Speaker 4 (02:57):
So the quick and dirty on FMLA is it is the
Family and Medical Leave Act.
That's what those letters standfor when we think about FMLA.
That is a federal entitlementto employees or companies that
employ 50 or more people at aspecific site or
organization-wide.
(03:18):
It entitles you to up to 12weeks of leave in a 12-month
period for care for your ownmedical condition or care for a
family member with a coveredmedical condition.
There is a new-ish developmentwith who is considered a covered
family member.
Siblings have not generallybeen covered and are not lined
(03:38):
out, but there have been courtcases recently that have
indicated that if you care for asibling in the way that a
parent child would care for eachother, you may be eligible for
leave under FMLA to care for asibling as well for their
serious medical condition.
Speaker 1 (03:54):
It's my understanding and, granted, you're going to
tell me when I get this wrong,it's my understanding of FMLA is
that, yes, you are entitled toleave and it protects your job,
but it doesn't necessarily meanthat there's payment.
It's not like you get paid tobe gone for those weeks.
Is that correct?
Speaker 4 (04:09):
That is correct.
So you can use if you accruedsick time or paid time off under
your organization's policies orif you are in a state that
provides sick time, which ishappening more and more
frequently you can run thatconcurrently.
So if I'm taking six weeks ofleave under FMLA and I have six
(04:29):
weeks of PTO, I can be paid forthat.
In some instances you may alsoif your organization provides
short-term disability thatprovides for partial payment of
wages, those can also runconcurrent.
So your short-term disabilitymay pay you up to your coverage
amount for the time that you'reoff under an approved FMLA.
Speaker 1 (04:47):
Okay, that is helpful .
Now, is it that your actual jobis protected, or is it that any
job is protected, like ifyou're gone for six weeks and
they need to fill your job andthey happen to fill your job
with a temp employee or they putsomebody else in your job, can
you come back to the same job?
Or would it be just like thatyou have a job at the
organization that's comparable.
Speaker 4 (05:08):
So the interesting thing about FMLA is that you are
entitled to be returned to thesame role.
That means that they can't makeany substantial changes to your
role.
So one of the things that comesup in organizations that are
multi-site is can we staff themat another location If that
other location wouldsubstantially increase
somebody's commute time?
That's not considered the samerole, even if functions are the
(05:32):
same and reporting structure isthe same.
So you really are entitled tobe returned to your same role.
So if your organization iscovering a business need while
you're on protected leave, theyneed to make sure that your role
is available for you when youare ready to return.
Speaker 3 (05:48):
I'm going to jump in real fast.
I'm sorry, alicia, because whenyou gave part of your
description before, you said anapproved medical leave, so could
you go into that a little bit?
Yeah, so.
Speaker 4 (06:02):
FMLA applies to your own serious health condition or
care for another with a serioushealth condition.
So you're not going to go onFMLA because you've had the flu
for one day.
Fmla is generally sought bypeople that either have a
chronic condition that requiresongoing treatment or if you're
hospitalized for any reason foran overnight.
(06:22):
So any period of time whereyou're admitted to a hospital
overnight is generally going toqualify you to seek leave under
the FMLA, and the reason thatyou would do that, even for that
short period of time, is thoseabsences from work would not be
subject to discipline under anattendance policy.
So there's actually twodifferent kinds of FMLA that
(06:43):
that brings up.
There's intermittent andthere's continuous.
So you're entitled to 12 weekstotal in that 12 month period
that I mentioned.
If you were in the hospital,say, for four days, and you
apply for a continuous period ofFMLA to cover those four days,
you have your FMLA approved forthose four days and then you
have the remainder of that 12weeks available to you.
(07:04):
If you have any other instances, you would need to apply again
If you're looking at FMLA for achronic condition that requires
ongoing treatment, like I haveCrohn's disease, if I need off
for my appointments and don'twant to have to submit a note
for that or be concerned aboutattendance occurrences.
I am eligible for 12 weeks ofleave to be used throughout that
(07:25):
12-month period for carerelated to my serious health
condition and that would be anintermittent leave.
Your healthcare providersubmits paperwork for that
explaining your condition.
It explains whether it issomething that is like that
brief overnight in the hospitalor whether it is a chronic
condition that will requireongoing care.
They do fill out information onfrequency and duration of
(07:48):
absences for that ongoing careif necessary.
So if you have a condition thatmay flare up, they may take a
guess at how many days that mayimpact you on a monthly basis If
you have scheduled appointments.
They would indicate that All ofthat gets submitted generally
to a company's HR department ora third-party administrator, so
it's not going directly to anemployee's manager, so they're
(08:09):
not getting all of thatbackground information.
Speaker 1 (08:11):
Thank you, that was going to be.
My question is, yeah, like howmuch information do people see
on your medical condition?
So it sounds like managers yourdirect manager doesn't see it,
only the HR person, if there isan HR person.
Speaker 4 (08:24):
Yeah, I generally encourage employees to go
directly to a benefits team orthe human resources department
in your organization.
We actually discourage myorganization managers from
asking for anything.
So what we tell them is if youhave an employee who says to you
I missed a bunch of workbecause we've trained them on
(08:45):
when someone should be directedto apply for leave of absence,
we don't want a manager havingall that information because it
poses problems if they do needto discipline them for something
else, but we also don't wantemployees feeling that they have
to share all of that with amanager with regards to an
underlying health condition.
That can make them feel likethey may be treated unfairly.
Speaker 1 (09:03):
Yeah, that makes a lot of sense.
I was going to say do you trainyour managers to just stick
their fingers in their ear andsay la, la, la, so they can't
hear anything?
Because, yeah, it's hard.
Because I mean, you want to behonest, I'm sure as an employee,
and you have a goodrelationship with your boss, or
you have a good relationship,I'm sure you want to be honest.
But I agree with you, you kindof also need to protect yourself
.
Speaker 4 (09:22):
We have trained our leaders to say I appreciate your
sharing that with me.
I'm going to have you speakwith benefits or I'm going to
have you speak with humanresources, because they're going
to be the people in the bestposition to get you the
information you need.
So we're not telling them tolack compassion when something
is being shared with them, butwe're also giving them direction
to not probe.
Speaker 1 (09:42):
So you're saying my fingers in the ears, la, la, la
is lacking compassion, abby itmay not be the most
compassionate response.
Speaker 4 (09:52):
You know they may appreciate the happy tune you're
singing to them, but there maybe a different way you want to
approach that.
Speaker 3 (10:02):
That's fair, okay.
So a follow up to that is iswhat would you say are a couple
of like, maybe the biggestmistakes employees make when
using their fmla because, likeyou said, maybe not tell it to
your manager, maybe go straightto hr.
Like, what are the biggestmistakes that you see that
employees might make when tryingto use their fm?
Speaker 4 (10:22):
So the first mistake actually happens before they're
approved for FMLA.
There are timelines when yourequest FMLA that you need to
provide paperwork back, eitherto your human resources benefits
team or if your company uses athird-party administrator.
The biggest mistake is peopledon't provide the follow-up
documentation and they don'tcommunicate why.
Most organizations and this isagain under court guidance want
(10:44):
to be reasonable for employees,so there is a 15-day time period
to return that paperwork.
If my physician's office isreally backed up and says we
have a three-week turnaroundtime, if that's communicated
they're likely going to extendthat deadline.
But not turning in paperwork isthe biggest mistake.
Before you even get to approval.
Once FMLA is approved, peoplerun into challenges because
(11:08):
they're not keeping track oftheir time.
That 12 weeks needs to beaccounted for and it's accounted
for out of fairness foreveryone.
You get 12 weeks total.
So if I use six weeks for myhealth condition and then I have
to care for a parent with aserious health condition, I only
have six weeks left, and so wewant to make sure that we're
handling everything fairly.
Not accounting for that timecan be really challenging,
(11:30):
particularly with intermittentleaves, if you are in an hourly
role where you are scheduledversus an exempt role where
you're salaried and you justhave your schedule as you set it
.
It's very challenging foremployers to plan around that,
and, while they can't disciplineyou for it, they can get very
frustrated if you have knownappointments and are not giving
(11:51):
advanced notice, and so thereare things that your employer
has to do for you.
On FMLA, there are also thingsthat make you sort of a good
consumer of FMLA, and it is thattimekeeping.
It is that advanced notice wherepossible.
It is following call-outprocedures.
We can't discipline somebodywho can't come in and they have
approved intermittent FMLA forusing that time, but there can
(12:15):
be discipline if you're notfollowing those call-out
procedures.
You still need to follow all ofthose rules that are in place
for your workplace and I thinkall of that really just comes
down to communication.
It is frustrating for employerswho are trying to do the right
thing and it just puts up somebarriers to being able to
effectively use your time in theways that you need to.
Speaker 1 (12:34):
So I work for an organization that is too small
to have an FMLA to be covered byFMLA, but in past jobs I know I
had to use up all of the restof my leave before they would
kind of let me go start to useFMLA.
Is that a thing, or did I makethat up in my and just assumed
that was a thing that?
Speaker 4 (12:53):
is actually not accurate at all.
They can tell you if you'retaking FMLA you need to use your
PTO with it, but they can't sayyou can't get FMLA time until
you've used all of your PTO.
Some organizations will let youtake your FMLA as unpaid time
if you don't want to use all ofyour PTO for it, because it's
very hard.
We hear a lot about work-lifebalance.
(13:13):
I think more appropriately it'swork-life integration.
It's very hard when you'redealing with a chronic condition
, either your own or somebodyelse you're caring for, to feel
like you never have anopportunity to disconnect as a
person and all you ever get todo is address your health
concerns.
So a lot of organizations willallow you to take that as unpaid
time.
But your organization can sayyour PTO is going to run
(13:35):
concurrent or your sick time isgoing to run concurrent, which
is why a lot of companies arelooking at separate banks
because they want a positiveemployee experience to not say
all of your PTO is gone becauseyou have a health condition.
Speaker 3 (13:45):
This is going to be a curveball Abby, I'm sorry.
So if you don't know the answer, if an employee doesn't qualify
for FMLA for whatever reason,are there other alternatives for
them to take time off like this?
Speaker 4 (13:59):
So that is going to be company specific and to some
extent, jurisdiction specific.
So I mentioned that there arestates and localities that have
their own sick time provisions.
So even if an organizationdoesn't offer sick time, if it
is required by the state or thecity that the business operates
in, that sick time may still beavailable to them.
(14:20):
My company, for example, offerscompany medical leave.
To qualify for FMLA you have tohave worked 1,250 hours in the
previous 12 months and mostcompanies pursue that on a
rolling basis, not a January 1basis.
Both are valid, but most usethe rolling basis.
It's just easier.
If you don't qualify for that,there may be other leaves
(14:41):
available to you.
So our company medical leave isintended for people that have
not had a sufficient tenure withus and it is for a shorter
period of time.
It is not job protected.
So if we do have a businessneed, we can't backfill that,
but that's going to be specificto your organization's policies.
So I really encourage everybodywho is dealing with care for
their own condition or care foranother, when you start a new
(15:04):
role and probably annually whenyou review your company's HR
policies, really do a dig inthere and make sure you
understand what's available toyou and if something is not
clear, ask your human resourcesteam.
If you live in a state whereyou believe there is sick time
and you're not seeing itaccounted for on your pay stubs
or in your timekeeping, ask yourhuman resources about it.
(15:27):
Those are entitlements that youhave and so always want to make
sure that everybody does acheck on what's available to
them.
Speaker 1 (15:33):
So you mentioned that it's companies with 50 people
and above, or organizations with50 people and above.
Are there other companies orother ways that a company would
not be dictated to by FMLA?
It's like our federal agencies.
Does this work for them as well, or are there other places that
sort of don't have to followthis?
Speaker 4 (15:52):
So I am not entirely up on my federal agencies.
I will be very transparentabout that.
But you did remind me the otherspace that this covers is for
military caregiver leave.
So that falls under its own setof definitions of who is
covered under that provision toprovide leave.
But they are also entitled toFMLA for military purposes as
(16:15):
well.
The federal space is tricky andI don't want to speak
incorrectly to that.
Speaker 1 (16:20):
Okay, can we talk about ADA please at this point?
Do an overview please, if youdon't mind, just kind of giving
like the very like cliff notesversion of the Americans with
Disabilities Act.
Sure.
Speaker 4 (16:30):
So the ADA is a law that was enacted in 1990, and it
is intended to provide supportto individuals to perform the
essential functions of their job.
The people that are covered bythat are those that have their
own health condition impactingone or more major life functions
.
So where FMLA can be to carefor yourself or another, ADA is
(16:54):
specific to your own medicalcondition.
Speaker 1 (16:57):
Okay, perfect, I guess.
I'm curious like what?
How do you know that you're?
Whatever you're you're livingwith is a qualifying
quote-unquote disability, whenyou know when, in this case of
Crohn's or ulcerative colitis orsome other types of autoimmune
conditions, it kind of waxes, itwanes.
There are times where you mightbe more sick and not as sick.
So how would one know if theircondition is something that's a
(17:18):
covered medical condition?
Speaker 4 (17:19):
Yeah, that's a great question.
It is something that affectsone or more major life function,
and so when we think aboutsomething like Crohn's and
colitis that can impact multiplelife functions, it happens to
be a chronic condition thatrequires ongoing treatment.
It can flare up, it is lifelong.
All medical conditions are notcovered, so things like the flu
(17:43):
would not be covered.
Something like that is notgoing to be covered.
That's really transient.
For the purposes of Crohn's andulcerative colitis, we're
thinking about things thatimpact now and will impact one
or more major life functions,and that can include restroom,
that can include, if people haveassociated joint issues, things
like walking, the ability tosit or stand for extended
(18:04):
periods of time all of thosethings that impact somebody's
day-to-day.
Speaker 1 (18:08):
It's kind of the same question as FMLA how much
information do you have todisclose of your medical
condition in order for you toget accommodations?
Speaker 4 (18:17):
So the ADU paperwork is really interesting.
What your healthcare providerhas to certify is that you have
a condition that impacts one ormore major life functions.
They're generally not requiredto disclose what that condition
is.
What they're including in thatpaperwork is that you have
something, this is what itimpacts, and that this is the
accommodation they're asking forto be able to allow you to
(18:38):
perform the essential functionsof your role.
So for somebody with Crohn's orulcerative colitis, that may be
a certification that, yes, theyhave a condition.
It impacts their need for morefrequent restroom breaks, and
what they're asking for iscoverage and immediate
availability of a restroom whenneeded.
Speaker 1 (18:56):
So if you know you had a condition, you knew you
were going to need someaccommodations, but you didn't
quite know what thoseaccommodations are and you could
bring in, for instance, anoccupational therapist to kind
of say, okay, this is sort ofthe accommodation that could be
made.
Whose responsibility would itbe to pay for that professional
to come in and help?
Speaker 4 (19:14):
figure that out.
So yeah, it's a great questionof how you figure that out.
There is something in the ADAthat is legally required, called
the interactive process, andwhat that means is that if I, as
an employee, indicate that Ineed an accommodation, it's
helpful if I can suggest that,but it is not required.
Generally, somebody'shealthcare provider can make
some suggestions on their behalf.
(19:36):
When you're talking about whopays for it, it gets a little
bit more complicated.
It is generally on the employerif they are disagreeing with
what you've proposed to them,but usually most organizations
work cooperatively.
There's a really nice governmentresource called the Job Action
Network.
It's called JAN for short andit has kind of an encyclopedia
(19:58):
of most conditions that youcould think of and potential
accommodations to support them.
So it's a nice way if you'vegot somebody that doesn't know
what to ask for that an employercan go and spend some time
there as part of thatinteractive process.
The key piece of thatinteractive process is you do
really want it to be cooperative.
So if you're not understandingwhat somebody's healthcare
(20:19):
provider has indicated, you wantto go back and ask them.
You want to tell the employee.
I'd like to talk to yourhealthcare provider because I
want to understand what they'reasking for.
It really is a support foremployees and it is a way to
allow people to keep the jobsthat they were hired for, and
engaging in that process reallycan help people feel that
they've been heard and thatthey're not just being told this
is what you get.
Speaker 1 (20:40):
Great, yeah, I do think having that be an
interactive conversation makes alot of sense, I guess.
Kind of similar question islike if there was something that
was necessary to help somebodylike say, you know you have
arthritis secondary to yourCrohn's disease and you need a
special keyboard or voicesoftware that can help so you
can voice text essentially, orvoice you know type Again same
(21:04):
kind of question.
It's like if this is the thingyou need in order to do your job
, are you responsible forpurchasing it, or is that
something your employer would do?
If it is something that couldbe that requires to be purchased
, like a special chair, aspecial keyboard, whatever it is
, yeah.
Speaker 4 (21:15):
So all of those things are generally purchased
by your organization.
The keyboards and the chairsare kind of the easy ones.
If you need the ergonomickeyboard, if you need a headset
instead of a handset for a phone, if you do need the talk to
text software, those are alwayskind of the easy ones within
reason.
So if you as an employer comingback and saying I need the
Cadillac of chairs, youremployer can suggest something
(21:37):
that is a little more the Toyotaof chairs if it will accomplish
the same thing that yourhealthcare provider has
presented.
Speaker 1 (21:43):
Got it so like if you need a bathroom and there isn't
one nearby, you can't requirethem to like build you a
bathroom.
Speaker 4 (21:51):
You generally can't require them to build you a
bathroom, but there is probablya requirement that there be one
nearby and available to youanyway under some other lovely
estate building codes.
But that brings up the questionof what constitutes reasonable,
because the ADA is reallygeared towards reasonable
accommodations.
Speaker 1 (22:11):
What do they count as reasonable?
Who gets to determine whatreasonable is so?
Speaker 4 (22:15):
reasonable is a little bit of a tricky
determination.
What you are trying to avoid asan employer is undue hardship.
That's a pretty high bar.
What is not there on that baris a specific list of things
that you can say.
This definitely constitutes anundue hardship to me as an
employer, and the assessmentyou're making is would there
need to be a fundamental changeto your business operations is
(22:39):
kind of the key consideration.
And then is what the employeeis asking for is to remove an
essential function of their job?
The ADA does not require you toremove an essential function of
someone's job, and so a requestfor that is generally going to
be considered unreasonable andundue hardship.
As part of that interactiveprocess, we frequently at my
(23:00):
organization have people thatare requesting more frequent
break time for one condition oranother.
We are a healthcare organizationwith a one-to-one treatment
ratio, so there's somescheduling considerations there
and there's some billingimplications and we never want
to say no straight away.
So what we will do in thatinstance is let our employees
know that we're going toimplement their requested
(23:22):
accommodation on an interimbasis to understand how it
functionally plays out and whatthe impact is on our business
operations and if, after runningthrough that we do an
assessment and determine it ashaving a really negative overt
impact on our businessoperations.
That's a space where we wouldthen say, as the employer, we
don't feel that this is areasonable accommodation and we
(23:44):
would notify the employee ofthat.
We would usually give anopportunity to see if there's
something else that we might beable to try before we just
simply say we're unable toemploy you.
But the undue hardshipreasonable assessment is up to
the employer.
If an employee has anaccommodation denied, they do
have the ability to pursue thatthrough state agencies, through
(24:04):
the EEOC and through the courtsystem to say that their
employer did not engageappropriately in that process.
Speaker 1 (24:10):
I do think that's a key point to make is that a
reasonable accommodation for ajob isn't that you can't do an
essential part of the job, it'sthat you might need assistance
to do it, and I think that's thepart that sometimes people get
a little kind of confused about.
It's like you still have to beable to do the job the job as it
is and the essential pieces ofit.
(24:30):
It's just you might needsomething to help you do it, but
if you can't do an essentialpart of the job, then you're
just not qualified for the job.
Which kind of same thing forall the rest of us too.
Like if there's a big piece ofmy job I can't do, then I'm not
qualified for the job.
Speaker 4 (24:45):
Exactly so.
The ADA really says that youare able to perform the
essential functions of your jobwith or without reasonable
accommodation, and so you dohave to have the qualifications
for the job.
Speaker 1 (24:55):
Right.
Super helpful Knowing thatyou're not providing any sort of
legal advice right now, but, ingeneral, what is perhaps kind
of some of the best practicesaround when you might want to
disclose that you need areasonable accommodation as a
job applicant.
Speaker 4 (25:11):
So there's actually an interesting piece of the ADA
which indicates that reasonableaccommodations need to be
provided to somebody if theyneed them for support during the
interview process.
So you do have the opportunityto indicate that interview
process.
So you do have the opportunityto indicate that.
And most actually, I have notseen in recent history any
employer that as part of theirapplication doesn't ask a
(25:31):
self-identification questionregarding disability and,
companion to that, they provideinformation on who to contact if
you need support during theinterview process.
And that can be anything.
Let's say, if somebody was in awheelchair and was unable to
travel for an in-personinterview for a role that would
be remote, it would bereasonable to ask for that
interview over Zoom, all ofthose sorts of things.
(25:52):
It would be reasonable toindicate for somebody with
Crohn's or colitis, I need tohave a restroom available to me.
During an in-person interview,you don't need to indicate why.
And during the interviewprocess, somebody is generally
going to ask for lessdocumentation.
Indicate why.
And during the interviewprocess somebody is generally
going to ask for lessdocumentation.
Once someone has been offered arole, I think what I generally
recommend is, as soon as youbelieve you need something, it's
(26:12):
in your best interest to pursuethat process, because what it
avoids is an employer gettingfrustrated that you are or
aren't doing something.
It also avoids you feelingfrustrated in a new position and
it can give you some of thosesupports that you need straight
away.
We have employers from time totime that got really frustrated
if they didn't say this duringthe interview.
(26:33):
Well, they don't have to say itduring the interview.
There is no legal obligation tosay it during the interview.
There's no legal obligation tosay it.
After I've been workingsomeplace for five years, I
don't have to say it unless anduntil I feel like I need
something.
So at the point when you feellike you need something, I would
encourage people to reach outto their HR and their benefits
to ask how that process works.
(26:53):
The interesting thing about ADAthat's different from FMLA you
do not have to make a request inwriting If you as an employee,
say to your employer I need XYZbecause I have a health
condition, without telling themwhat that health condition is.
You've now put them on noticeand they should begin that
interactive process with you tounderstand what supports may be
(27:15):
available and may be reasonablefor you.
So you can really do that atany time, but I think as soon as
you know you might needsomething, it is in your best
interest to do that to preventany potential performance
management, prevent difficultiesin performing your job and
really avoid any of thatdiscrimination or retaliation
that can happen.
Speaker 1 (27:35):
Great, Thank you.
I guess that does bring up adifferent question, though,
because you're right, the timesI've looked for jobs there is in
the application process thelike are you somebody that's in
a protected class, essentially?
So what happens if you don'tdisclose at that moment?
Speaker 4 (27:48):
If you, as an employee, do not disclose during
the interview process or at anypoint in time, you cannot be
punished for that.
They can't take performancemanagement action.
They cannot discriminateagainst you.
None of those things canlegally happen.
When I say they can't, itdoesn't mean that it doesn't
happen.
It means that it can't legallyhappen.
And so if you're notcomfortable disclosing that
(28:10):
during an interview process, youdon't have to do that.
If there's no accommodationthat you need during the
interview process, if you arelooking at a role and don't
think you would need anaccommodation, or if you just
don't want to disclose it atthat point, you don't have to do
that.
Speaker 3 (28:25):
Are there any best practices or tips that you have
for disclosing or not disclosingyour chronic illness at work or
during the hiring process?
Do you have any recommendationsabout that?
Speaker 4 (28:38):
I recommend being reasonable.
If you are looking at a roleand you reasonably believe that
you may need an accommodationonce you've begun employment, I
really suggest that you have aconversation before, and that
doesn't necessarily need to beto your manager.
That can be directly to HRbecause, again, we want to limit
and protect the amount ofinformation that managers are
(29:00):
getting.
You can say to a manager I havea health condition and because
of that I think that I may needsomething.
Who do I speak with?
I think you're asking questions.
I think you want to be cautiousof oversharing.
And it's not because we'refighting the conditions that we
have.
None of us are embarrassedabout them.
(29:22):
They are a wonderful part ofwho we are.
It's us are embarrassed aboutthem.
They are a wonderful part ofwho we are.
It's because we want to makesure we're not giving
information to people that don'tneed to have it in a way that
isn't going to support us in ourrole.
I think talking to a healthcareprovider and understanding if
they're familiar with thatprocess.
So if I speak with my GI andsay here's what I'm looking for,
can you help me?
Most healthcare providers wantto support their patients.
(29:44):
They understand that we want togo to work, we get the
treatment we get and we do thethings we do so that we can be
the people we want to be.
And most healthcare providerswant to work through that
process and support you, and Ithink that most employers
genuinely want to do the rightthings for their employers.
So I think, being transparentwith the right people, being
reasonable about what you'reasking for it is probably not
(30:06):
going to be reasonable if youwork in an hourly setting to
indicate that you are going toneed to be off four hours a day,
five days a week that's veryhard for an employer to schedule
around, and so you want to bethoughtful.
It doesn't mean you're notasking truthfully for what you
need, but you want to make sureyou're not over asking for
things you may not need.
And then the other space isthat accommodations can be given
(30:28):
for chronic lifelong conditions.
They can also be on a temporarybasis, so you may have one set
of accommodations regularly.
So again that restroom accessor additional breaks if you're
experiencing a lot of fatigue ora later start time.
If your medications are makingit tough for you in the morning,
you may have a different set ofaccommodations when you're
having a flare.
You don't want to abuse those,the same as we want to be
(30:51):
reasonable with any use of leavetime.
We don't want to abuseaccommodations because it just
means that for the next personthat asks it's going to be more
challenging.
Speaker 3 (30:59):
What about in a remote working environment?
Are there reasonableaccommodations?
Speaker 4 (31:05):
So within a remote working environment, reasonable
accommodations are really goingto hint on what you need.
So if you're working remote fora call center and you're
expected to be logged in to aphone system or into a computer
system that's tracking yourengagement, you may need to ask
for additional break time sothat you're not having an
(31:25):
accountability for metrics,you're not meeting for a number
of calls being handled per hour.
If you're in more of a salariedexempt role where you again
have a little more ownership ofyour calendar, if you need to
log in later on certain days orbe off for treatment or have an
accommodation that you can haveyour camera off, for example,
(31:47):
because you're able to workthrough treatment.
Those are reasonable things.
The other space I happen totravel a lot for my role.
It is reasonable to indicatethat you may need a specific
seat If your company's travelpolicy wouldn't generally allow
for seat selection.
If you need a specific seatbased on access to the restroom,
that would generally be areasonable accommodation, even
(32:08):
though there's an additionalcost to an employer.
Employers run into a lot oftrouble trying to deny
accommodation based on sayingit's going to cost us too much
and they need to do a lot oflegwork in order to make that
stand, and so things like seatselection could be reasonable.
If you can't travel, that couldalso be a reasonable
accommodation.
If your company requires, whenyou do travel, that you need to
(32:30):
share a hotel room, not doingthat is generally going to be a
reasonable accommodation for you.
Speaker 1 (32:36):
You mentioned the EEOC and if you felt like you as
the employee needed to reportyour company or felt like that
something wasn't accommodated,Talk a little bit more about if
you were somebody who didn'tfeel like you were getting the
accommodations you needed or youfelt like you were being
discriminated against, kind of.
How would you best prepare tobe able to kind of make your
case?
How do you kind of set yourselfup for the best experience or
(32:58):
response from something like theEEOC?
Do you start with the EEOC?
Are there other places?
Speaker 4 (33:03):
So generally you need to go through a state agency so
Human Rights Commission for thestate and you joint file with
the EEOC.
In most states You're filingone complaint and it's covered
by both agencies and you need towork through that process
before you're able to sue incourt.
What I really recommend is keepall of your documentation, and
(33:26):
so it's really easy to use yourwork email to go back and forth
or do things over Teams or Slackor whatever your organization
uses to go back and forth withthose messages.
If you're someone that yourcompany says we can't
accommodate you, you've now lostaccess to all of those things
and have to work with anattorney to request them, and so
when you're working through anaccommodations process, I
(33:48):
generally would guide that youdo that through your personal
email.
You have the same emailresponse time, but you have all
of that documentation and it'shandy for you.
I would also make notes.
So if you have a verbalconversation with your benefits
or your HR team or your manager,make notes of the dates and
times that you had those.
Make notes of who's present,and we never want to be working
through a process assuming thatsomething won't go well.
(34:10):
But this is also helpfulbecause there's often changes in
leadership and sometimessomebody that has an
accommodation in place thatdoesn't get communicated
appropriately and they say, no,I have this in place and I've
had it, and all the people thatwere on the other end of that
email chain are gone, and sokeeping track of all of those
things and retaining all ofthose things will help you, even
if you don't feel like youhaven't been treated unfairly.
(34:31):
But what you want to do is holdon to all of those things and if
you do feel like you've beendiscriminated against, either by
being denied employment, havingyour employment end or not
being promoted or considered inthe same way for merit-based
increases and all of thosethings, you want to have all of
that, and I really recommendthat you find an employment
(34:51):
attorney.
Traffic attorneys, criminaldefense attorneys, contract
attorneys all wonderful people.
There are so many nuances toemployment law.
You want to find somebody thatis very familiar with your
state's regulations.
You're also going to find thatsomebody that works in that
space is better able to ask youthe right questions to
understand what you'veexperienced and help you
(35:11):
understand if you do need topursue one of those complaints.
One of the biggest things thathappens is there are
miscommunications or there'spoor communication and it
doesn't always feel great, butthat doesn't always mean it's
something that you need to spendall the time and energy working
through one of those processesbecause they take a very long
time.
They're available for a verygood reason and they are to
(35:31):
protect people that have beentreated unfairly.
But really find an attorneythat works in that space and
they will help you understandwhat might be the best course of
action for you and youmentioned, you said, your state
agency and the EEOC.
Speaker 1 (35:44):
you jointly file.
If you file with the EEOC, willthey then file for the state,
or are you required to do both?
Speaker 4 (35:50):
That one's going to be specific to your state.
So it is specific to your stateof which agency you file with
and what is dual filing.
Most states operate under dualfiling now because it cuts down
on paperwork.
Many states are very, verybacked up.
So you need to file yourcomplaint within your state's
allotted amount of time.
After you believe thatsomething was improper, the
(36:13):
state will work through a bit ofa fact-finding process where
they will ask your employer oryour previous employer to submit
documentation.
You submit your documentationand then they work through a
process and determine if it is amatter that they're going to
take up on your behalf becausethey feel that a regulation or a
law has been violated, or ifthey're going to say we're not
(36:34):
making a determination, butyou're welcome to file in court
if you choose to do so.
Speaker 1 (36:40):
Okay, what happens if you file, you supply those
things, your employer suppliesthose things, and then they turn
around and say yeah, we don'tthink there's anything here.
Is there any protection againstdiscrimination after that point
or being fired after that point?
Speaker 4 (36:56):
So if you file a complaint with any state agency
and you're still employed withthat organization, if they take
any action against you based onyour having done so, that is
prohibited retaliation.
So there is an entire separatecourse of action for that.
What's really interesting isthat even if a state agency says
, or the EEOC says, the denialof the accommodation wasn't
(37:20):
discriminatory, if they takeaction against you they may
still find that what youremployer did was retaliatory for
your having filed thatcomplaint and that's actually
the harder space for an employerto defend against and it's
actually the biggest risk to anemployer.
So we always really encouragethat if a current employee has
filed a cause of action,everyone be on their very best
(37:40):
behavior because it's incrediblyrisky, but it is prohibited.
It is a legal retaliation.
Again, it doesn't mean itdoesn't happen, but it means
it's not legal and you have aseparate cause of action for
that.
Speaker 1 (37:56):
Okay, that's very good to know.
You said something aroundtreatment and time for treatment
, so that made me think of likegoing back to FMLA.
So bouncing back to FMLA say,you're on Remicade or one of the
Remicade biosimilars and youneed to get an infusion every
six weeks and it's half a daythat you need to go to the
infusion center and you might.
If you work remote, you mightbe able to work from there, but
if not, then you need to takeprobably half a day off.
Are you able to use FMLA forsomething like that because it's
(38:18):
a just ongoing treatment of achronic illness, or would you
need to?
Would that automatically belike sick leave because it's not
a full day or an overnight stay?
Speaker 4 (38:26):
So that is going to be the great place where
intermittent FMLA comes intoplay, and so that is where you
would let your employer know I'mscheduled for this half day off
.
Please do not schedule me forthis time.
And then you're able.
You don't actually even have totell them what you're doing.
You just need to tell them thisis the time that I will be off
and it is under my approvedintermittent FMLA, and then you
(38:50):
don't have to have a doctor'snote for your treatment.
You don't have to say to themlike here's where I'm going and
here's what time I'll be there.
You have that time off and theycan't schedule you, but you do
want to give them that advancenotice.
But that's really the mosttypical case for intermittent
FMLA is that and the conditionthat flares off, got it.
Speaker 1 (39:07):
I assume it's the same thing for, like, pelvic
floor physical therapy or ifthere's other types of
appointments that are treatmentrelated, yep.
Speaker 4 (39:14):
Anything that is related to the condition that
you have approved FMLA for iscovered under that.
So if you know about it andit's predictable, you want to
give advance notice.
If it's a flare and you don'tknow that it's coming, you want
to handle that the same way youwould.
As you know, I woke up thismorning with the flu and you
want to call and give as muchnotice as is reasonable given
your condition.
Speaker 1 (39:35):
Is there anything about FMLA that is specific to
somebody who would have a childlike as a parent of a child
living with inflammatory boweldisease?
Speaker 4 (39:45):
So a caregiver caring for somebody else's serious
healthcare condition is entitledto the same 12 weeks and is
entitled to use it the exactsame way as somebody who is
dealing with their own serioushealthcare condition.
So if you are a parent of achild with Crohn's or ulcerative
colitis and you need to takeyour child to appointments or
(40:07):
you need to stay home with themwhen they have a flare, any of
those things are covered in thesame way as an individual who is
dealing with Crohn's andcolitis themselves.
Speaker 1 (40:16):
I guess.
My question then is same thingwith Americans with Disabilities
Act?
Is there anything similar tothat when it comes to Americans
with Disabilities Act, when thissort of disabling condition is
actually your child's condition,that you're still protected in
certain ways because of havingthis disabling condition as part
of your life as a parent?
Speaker 4 (40:35):
So unfortunately, the ADA is specific to the
employee's own health carecondition.
It's not a protection thatexists because it really is
there again for you to performthe essential functions of your
role, and so, while you have theleave provisions, there's no
workplace accommodation for youbecause the individual with the
condition isn't performing therole.
(40:57):
Okay, got it.
That makes a lot of sense.
I think what's really importantis that, while it can feel
really hard to tell youremployer I have a thing, or I
care for someone with a thing,or I need something, these exist
to protect employees.
These exist to allow you to beable to do your job in the best
way and not be worried about Idon't have a doctor's note or
(41:19):
I'm going to be disciplined forattendance, or it's a challenge
for me to do something and Idon't want to ask.
It doesn't always feelcomfortable and, again, it's not
because we have any level ofembarrassment about what we live
with each day.
I'm really proud of havingCrohn's disease and I'm proud of
the life I live with it.
That doesn't make it any easierto ask for things, and so I
(41:42):
just always want people to knowthese exist to protect you and
so work through the process thatyour company has, ask the
questions you need to ask,figure out who the right people
are to talk to and do what worksbest for you, and you don't
have to do it again.
You know you don't have toapply for intermittent FMLA if
your role allows you thatflexibility and you don't need
(42:02):
it If you have a role thatdoesn't have that.
You want to apply for it whenyou're eligible for it because
it's there for you to use.
It doesn't mean you have to useit, it doesn't mean you're
necessarily going to use it, butit means it's there for you if
you need it.
And I think that's reallyimportant for people to
understand that these areprotections and these are things
that are there to help you?
Speaker 1 (42:21):
Yeah, I think that's really important.
I was curious, when you weretalking about your job and being
proud of doing your job withyour Crohn's, what happens if
you're the person who is theperson that's supposed to be
getting the paperwork foraccommodations, or your boss is
the person who is going to seethe things that are typically
more confidential information.
(42:42):
How does that work?
It's a great question.
Speaker 4 (42:44):
Some companies that are big enough have a
third-party administrator, sothere's lots of different
organizations that will managethat process and it takes the
employer out of seeing any ofthat because it's submitted
directly to them.
Generally, people in HR knoweverything about everyone all
the time and we just pretend wedon't in most situations.
(43:07):
And so if you're the personthat would generally review that
paperwork, you're going to wantto front that to your company,
that I need something, reviewthat paperwork.
You're going to want to frontthat to your company, that I
need something.
And your company will eithersay, sure, because we don't know
what we're looking at, becauseyou're the person who looks at
it, we're just going to trustyou.
They may have an outside lawfirm on retainer that will
(43:28):
review what you're looking atand say, yes, this is reasonable
and they will document that foryou.
But we generally within thepeople space are used to seeing
some of everything and there'sreally no judgment.
But again, if your boss is theperson that that paperwork goes
to, your boss should know wellenough that they're not going to
(43:49):
treat you unfairly or react toyou in a way that's not
appropriate.
And if that happens, then youwant to look at that retaliation
space for having sought illegalprotection.
Speaker 3 (44:00):
I really appreciate how thoughtfully you answered
the question, because I'm thekind of person that and I've
said this on the show before,but it's been a long time since
we've talked about anything likethis job hunting,
accommodations I'm not quietLike I don't hide the fact that
I have Crohn's, because,honestly, I I don't have the
energy to work someplace thathow do I phrase this?
(44:23):
I don't have the energy to worksomeplace that is not going to
work with me or haveaccommodations for me or make it
challenging for me.
I already have, I've alreadytested my resilience factor a
million times.
I don't need to be any moreresilient.
I already have enough going onand I just, you know, want to do
my job and I don't want that tobe a factor.
But sometimes I need people toknow what's happening, and so I
(44:47):
usually just am upfront rightfrom the start, because if I get
any kind of pushback orhesitancy, I know that that's
not a place, space I want to bein, because I'm not going to be
able to perform at my highestlevel.
Speaker 4 (44:58):
So it's interesting that you say that I have some
things I've done with theCrohn's and Colitis Foundation
and Team Challenge on my resumebecause I like to share, or I
have community involvementbecause I think it helps speak
to who I am.
If you run a quick Googlesearch, those things show up.
So it's nothing that I'm hidingand I I try to front it in that
way.
But I did something reallyinteresting.
So my CEO knows that I haveCrohn's disease and I don't know
(45:22):
that he knew quite what thatmeant or quite the impact it had
on my life.
And so, after you all had me onso graciously last time, I sent
him the link and I just sent itand say, hey, I just want to
share this with you, it'ssomething I did and it's
something I shared.
And I just sent it and say, hey, I just want to share this with
you, it's something I did andit's something I shared and I
just wanted to share it with you.
And he listened to it.
(45:42):
He was driving for quite awhile between some of our
locations and he texted me andsaid I had really no idea what
you live with on a day to dayand I don't think that most
people would, and I think thatwhen I think about our community
of people with chronicillnesses, we just do.
We do what needs to get done,we do it in the ways it needs to
(46:02):
get done and we very rarelywant to ask for help.
Speaker 3 (46:05):
I never want to ask for help.
I never want to ask for help.
Speaker 4 (46:10):
It's hard.
It's hard and it doesn't feelcomfortable, and for some of us
it sometimes feels like myillness is winning if I have to
ask for help, and we don't wantto do that.
And so to have the opportunitythat you all provided to be able
to share with somebody that Ihave a very strong professional
relationship with and give himsome additional insight into all
(46:31):
the things I get done for himand for our organization and for
our employees, regardless of,in spite of, and sometimes
because of, my experiences, wasreally really impactful, and so
I think there are ways to share.
When you feel comfortable doingit, that can be really
meaningful.
But no, we, we don't want tohave to go through more, we
don't want to have to justifywhy we're just trying to come to
(46:53):
work, and so I think the waythat you think about it not
putting yourself in a situationand being able to say this isn't
the right space for me, becauseI see how you're engaging is a
tremendous level ofself-awareness, and there are so
many employers that want tomake it the right place for
their teams, and when you can dothat as an employer, you have
an employee that feels heard andvalued and feels that somebody
(47:16):
wants them there, and that'soften going to be the person
that shows up in the best wayfor you.
Speaker 1 (47:30):
I love that.
That's beautiful.
Disability or a chronic illnessthat does potentially impact
their life in certain ways thatactually, when you look at the
statistics of attendance andperformance and longevity of
these employees, these tend tobe really fantastic employees.
They tend to be employees thatwork really hard, have good
performance and tend to be veryloyal to the company.
(47:54):
That is kind of loyal back tothem.
I think that that is what I'veseen in other things, but
correct me if I'm wrong.
Speaker 4 (47:59):
Nope, not wrong at all.
And I think as somebody andRobin, I'm sure you can also
speak to this Like, when I starta new job, I have all of the
concern of you know, are all ofmy healthcare providers covered
under my health insurance planand I run all of that benefits
check before I start and so allof those things that cause angst
when you're in a new role.
(48:19):
When you've worked through allof those and you feel
comfortable where you are andyou know that you are able to do
your job in the right way andyou know that if you need
something it's there for you.
You don't want to leave and gosomewhere else because you've
built that and you've built thatfoundation and you've built a
space where you know you cansucceed.
As long as that environmentremains stable and supportive in
(48:40):
the ways that you need and theways that you've sought out,
there's not a reason to lookelsewhere because you know where
you fit in an organization.
Speaker 1 (48:48):
Abby, final question for you.
We typically ask what's yourone piece of advice to the IBD
community, but in this case, ofall of these things we talk
about, what is the kind of keytakeaways from our conversation.
Speaker 4 (48:58):
I think really never hide from what you have and
never be afraid to ask for thehelp that you need, and don't be
afraid to raise your hand ifyou don't feel like you're being
treated fairly.
It's so important that all ofthese things and all of these
processes are there.
That doesn't mean everybodyfollows them, and so if you feel
like something is wrong, asksomebody.
(49:19):
If you feel like you're notgetting what you need, ask
somebody.
But I think it really all comesback to just don't ever hide
from what you have that makesyou amazing and gives you
experiences that make you such avaluable asset to others.
Speaker 3 (49:32):
Thank you, abby, so much for coming back on the show
and sharing all of your wisdomand learned experience with us.
Thank you everybody forlistening and cheers everybody.
Cheers.
Speaker 1 (49:44):
Cheers.
If you liked this episode,please rate, review, subscribe
and, even better, share it withyour friends.
Cheers.
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