Legal Question in Disability Law in South Carolina

Re: Disability

First, let me say I'm sorry this employee is facing this problem. It's bad enough to face a disability in life but then to have to be concerned about work - and she's right to be concerned, unfortunately - is just added grief.

There are two federal pieces of legislation implicated by your question. The first is the Americans With Disabilities Act. Generally it provides that if an employee is disabled under the law's definition, then the employer must give reasonable accommodation to the employee to help her do the essential functions of her job. A reasonable accommodation can be any one of a host of things, and really depends on the person, the disability, and the job - it's very fact-specific.

If the reasonable accommodation would not work an undue hardship on the employer, the employer must provide it. The employer is also forbidden from terminating the employee just because the employee isn't able to perform non-essential work functions; again, what makes a function essential or non-essential is going to vary from case to case.

Those are her rights - the right to reasonable accommodation and the right not to be fired for not being able to perform a function that's not essential to her job description.

She's also entitled to protection under the Family and Medical Leave Act if her employer qualifies as a covered employer and she qualifies as a covered employee. (That's a fact analysis that an attorney can help you with.) If both are covered, the employee is entitled to up to 12 weeks in any year's period of unpaid leave to care for a new baby, an adopted child, or a serious medical condition in either a family member or the employee herself. The employer can't fire her for asking for that time, or for taking it (assuming they're covered by the law).

This is a general discussion only of the law in this area. It's a complex area, however, and the employee should really call an attorney who's familiar with these laws promptly. There could be deadlines to asserting rights in these cases, and anyone who thinks they have a case or needs accommodation or leave should not delay in seeking legal assistance. I'll be happy to speak to the employee free of charge on the telephone about these matters, as would most employment attorneys who represent employees as I do.

Good luck.