Written by Avvo Staff

Employment Discrimination: Medical

Employment discrimination based on an employee's medical condition is prohibited in many cases by state and federal laws. Medical discrimination can include basing decisions on hiring, firing, promotion, and job assignment on incorrect assumptions about what an employee can and can't do. The Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) are the primary federal laws that protect qualified employees and applicants from unfair treatment.

Employment discrimination and the ADA

The ADA prohibits discrimination based on disability. The law defines a disability as a physical or mental impairment that substantially limits one or more major life functions, such as hearing, seeing, walking, speaking, breathing, thinking, caring for oneself, or performing manual tasks. The law protects individuals with a disability or a history of a disability, and individuals regarded as being disabled.

Because the ADA does not provide a list of covered illnesses or diseases, an employee's medical condition must be judged strictly according to the above criteria. If treatment for a medical condition removes an employee's impairment, he or she may not be eligible for ADA protection (e.g., if a long-term cancer survivor is fully functioning).

An employee must be able to perform a job's functions to be entitled to ADA protection. The employee may request reasonable accommodations, such as flexible hours to accommodate medical treatment, to do the job. Employers must accommodate the request unless it causes undue hardship to the business. All employers with 15 or more employees must uphold ADA.

When recruiting employees, employers may not ask any questions about an applicant's real or perceived disability. This includes questions regarding genetic history, workers' compensation history, or prescription drug history. A job offer may be conditional on the results of a medical exam, but only if the exam is required for all applicants to similar jobs. Medical inquiries and exams may only be required after employment if the content is job-related.

The law also makes it illegal for any employer, coworker, or client to mistreat or show prejudice toward an employee with a medical condition.

Employment discrimination and the FMLA

If an employee suffers from an illness, injury, impairment, or physical or mental condition that involves a period of incapacity (an absence of more than three work days), he or she may take 12 weeks of unpaid FMLA leave. Employees are eligible for leave if they work for an employer with 50 or more employees and work at least 1,250 hours per year.

An employee on authorized FMLA leave retains benefits and is entitled to have his or her job, or equivalent job, restored once leave has concluded.

Additional resources:

Live Strong: Cancer Support-Employment Discrimination (also applicable for other medical conditions)

The Americans with Disabilities Act: Questions and Answers

U.S. Department of Labor E-Laws: FMLA Advisor, Serious Health Condition

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