If you listed a previous disability prior to being employed by a company, is there any way this employer can deny your rights to FMLA becaus...

Question

If you listed a previous disability prior to being employed by a company, is there any way this employer can deny your rights to FMLA because of your disability or disability treatment ?

Answer

Hello . . I think you're asking whether you can be denied FMLA leave because an employer somehow discounts a medical problem it knows you had before you worked there. That strikes me as the opposite of what they should be doing, regardless of whether you told them about it when you started working for them.

An employer covered by FMLA (50 or more employees) has to grant FMLA leave on proof of a serious medical condition. The strength or extent of that proof might be contested, but your query suggests you were in treatment for the condition, so you would have doctors' attestations--the question will be how severe the condition was proven to be. Note that intermittent FMLA leave is among the arrangements the employer can offer, so we'd want to look at why they didn't.

Besides the FMLA, you may have a claim under the ADA (or Section 504 if a federal employee) for failure to accommodate your disability. The FMLA "serious medical condition" category isn't necessarily congruent with the ADA or Section 504's definitions of disability, so that's another bit of statutory and regulatory research we'd need to do.

There are plenty of gray areas in the FMLA and the ADA, so a consultation with a civil rights lawyer is a good idea. I'm such a lawyer--former DOJ civil rights division, ACLU before that, now in private practice and law teaching. Feel free to contact me--my vitals are below--and we can go over this in more detail. Cheers and thanks for putting your query out there.

Steve Pershing

The Chavers Firm, LLC

1250 24th St NW Ste 300

Washington DC 20037

202 467 8324

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