Legal Question in Disability Law in Ohio
More on Fibromyalgia
Hi, I saw the recent question on Fibro. I have FM and work issues also. On a casual basis I've talked to a few attorneys including one who represents clients with Fibromyalgia.
They all have said FM is basically not protected under the ADA. Appearently the ADA requirements have really tightened up and FM typically doesn't fit.
I talked with an ERISA attorney today. He said an employer could have a room full of FM affected employees and still not be required to protect them under the ADA.
He did indicate that while FM may not let you perform your job, it doesn't necessarily mean you are disabled. It was a strange conversation.
So it seems that while ADA may not recognize FM, Social Security would or at least would be more likely to. Am I understanding this correctly?
--name removed--
1 Answer from Attorneys
Re: More on Fibromyalgia
The basic issue with fibromyalgia and the ADA is that, assuming the medical and governmental community finally accept firbromyalgia as a real illness, to be considered disabled, one has to be unable to work in general, not be unable to perform the requirements of a specific job. This is also the basic social security disability standard.
The other potential question is whether the employer considers the employee to have a disability. The ADA basically has two tests, 1) Is the person disabled, or 2) does the employer consider the person to be disabled. This second part has not been developed in case law, so I cannot give you an "informed" opinion. However, it is my opinion that if an employer considers an employee to be disabled, it doesn't matter whether the employee actually meets the ADA definition of disabled. Again, my opinion is that if an employer considers an employee disabled, then the ADA applies; and the employee is entitled to all of the ADA's protections.
Paul
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