Legal Question in Disability Law in Virginia

Hi, and bravo for putting all that in writing. I'm an ex-DOJ civil rights lawyer myself--I was a line lawyer in the voting section from 1996 to 2005--and before that I was Va. ACLU legal director, so I've worked with the ADA quite a bit over the years. I'm now in private practice with a great little plaintiffs' firm here in DC, and I pay attention to civil rights queries on this site hoping I can help someone. So, I'll ask you a few questions and suggest some ideas, and you can answer as you wish--it's all private and privileged between us now, even if we don't decide to establish an attorney-client relationship.

I hear you saying you were on medication for lower back problems when you first came to ELS, and you let ELS know this at the beginning. Two potential ADA issues pop up: one about the lower back, the other about the meds you took for it. (By the way I'm a lower back pain sufferer too, been to the ER a few times during bad episodes, never had surgery but I know how painful it can be.)

There's good news under the law. First, several federal appeals courts (3d, 6th, 7th, 8th Cirs) have held that medication side effects can be ADA disabilities even if the condition they medicate isn't--provided that you are unable just to discontinue the medication or switch to one that doesn't cause the problematic side effects. So even if a court were to decide your lower back problem wasn't a disability, if the meds were necessary and impaired you in a way the ADA is supposed to recognize, we can still proceed. Second, from what I know, adrenal fatigue or insufficiency is not uncommon with steroid pain medication. I'm not sure whether the same thing happens with other medication, but it sounds like your doctors will certify your adrenal problems come from the back meds, and that the back meds are medically necessary.

So let's ask about a few procedural details that'll help us pick apart what DOJ might be liable for. What are all the things the medication side effects have prevented you from doing? For starters, we can use the Addison's disease accommodations at the Job Accommodation Network website (see here: https://askjan.org/soar/other/addisons.html) for how this problem can affect folks in general. It sounds like you asked for leave without pay under the FMLA. Was it continuous leave you asked for, or intermittent? did you ask ELS for any other specific accommodation, either for the lower back problem or for the side effects of the meds? Did they tell you whether they considered your lower back difficulties an ADA qualifying impairment, and did they give you any accommodations for it, a different chair or other equipment, relief from certain assignments, or any sort of liberal leave? Fyi you can look at some rather intricate EEOC guidance on interactions between ADA and FMLA here: http://www.eeoc.gov/policy/docs/fmlaada.html.

Next, let's look at the medication-related impairments. When did you tell the employer that you'd learned your problem was adrenal insufficiency caused by the medication? How long had you been working at ELS, or for the feds in general, before your Hopkins docs figured out that this was the problem? When did you give ELS notice of Hopkins' finding, and what do you think they'll say it looked like before you told them the cause? What do you think it was their business to know about your situation even if you didn't specifically tell them?

Some more queries that could help us. Between your coming to ELS and the discovery of your adrenal insufficiency, or your communication of this to your superiors, were there any problems at work? did you miss parts of days or whole days of work? Did those missed days or hours exceed your available sick leave? You know about the voluntary leave bank, but of course you had to join it, so let's ask if that worked out or gave you any benefit. Any other problems they would say they had with your job performance? Remember, just because they say it doesn't automatically make it so.

The disclosure of personal medical info implicates HIPAA, the federal medical info privacy statute. We'd have to discover whether your supervisor's comment to that security guard disclosed medical info as opposed to other "personnel" info. Even a non-medical disclosure may have violated some DOJ or OPM policy, but that's probably less important than the underlying problem of failure to recognize your medication-related impairments under the ADA.

As for their pressuring you to choose between resigning and being fired, that too is not uncommon. Either way, they could have violated the ADA if they acted against you on account of a disability that the ADA says they have to recognize and accommodate. It depends on the facts.

There are no guarantees in this world, certainly not as to legal outcomes, but if you want to pursue this further, I'm at your service. On the right facts you could have a good ADA case. And yes, a court will get the irony of a DOJ civil rights employment section staffer in this predicament. The Department might be willing to settle, and I think it's worth a try. Give me a call at 202 467 8324, or e-mail [email protected], and we can talk further. Thanks again for posting your question, and best wishes.

Steve Pershing

The Chavers Firm

1250 24th St., N.W., Ste. 300

Washington, D.C. 20037

(202) 467-8324 (voice)

(202) 466-0502 (fax)

[email protected]