Multiple sclerosis (MS) is a chronic autoimmune disease. People who live with MS often experience patterns of exacerbation and remission. When symptoms are in remission, people with MS may be able to work with minimal accommodations. But when symptoms are exacerbated, these employees may require significant accommodations. Unfortunately, employees in this situation may need to advocate for themselves to receive the accommodations they are entitled to under the law.
Arming yourself with information can help you stay employed during MS flare-ups. Here is what you need to know about your right to accommodations for MS under California law.
Is MS a Disability Under the ADA?
Yes. While few conditions automatically qualify as a disability, the most recent amendments to the Americans with Disabilities Act (ADA) specify that MS is an impairment under the law. This means you are protected by the ADA if your employer has at least 15 employees.
In California, MS is not automatically a disability, but California’s standards for “disability” are broader and even more conditions qualify. Thus, MS is also a disability under California law in nearly all cases. California law is more protective than the ADA because it applies to employers with 5 or more employees, instead of 15 or more employees.
If you need a workplace accommodation for your MS, you almost certainly have a “disability” under the ADA and any state law version of the ADA.
Your Right to Reasonable Accommodations for MS
Most employees are entitled to reasonable accommodations for MS. MS symptoms can vary greatly, so it is impossible to list all the accommodations that might apply. For example, some people with MS have serious fatigue, while others may lose their balance or struggle walking. Your medical provider should write you a note stating what accommodations will help with your specific symptoms.
According to the Job Accommodation Network (JAN), helpful workplace accommodations can include:
- Flexible work environments (flexible scheduling, work from home, flexible start time)
- Leaves of absence for treatment and recovery
- Modified safety equipment (fall protection, aerial lifts, etc.)
- Wheelchair-accessible equipment
- Modifications for temperature sensitivity (gloves, heaters, vent covers, etc.)
- Additional rest breaks
- Job restructuring
- Support animals
- Modified attendance policies (e.g., no “points” on attendance policies for a period of recovery)
These are just examples.
Can I Take Leave for MS?
Probably. If you have worked in California for 1 year and 1,250 hours at an employer with 5+ employees, you are eligible to take 12 weeks of CFRA leave for MS. Under the FMLA, you are eligible for 12 weeks of unpaid leave if you have worked for 1 year and 1,250 hours for an employer with 50+ employees.
Even if you are not eligible for CFRA/FMLA leave, you probably are entitled to additional leave as a “reasonable accommodation.” You are entitled to leave as a “reasonable accommodation” if your employer has more than five employees and it is not an “undue hardship.” Your right to leave as a reasonable accommodation also kicks in after your FMLA/CFRA leave expires. This means that you have the right to additional leave beyond the 12 weeks of FMLA/CFRA in most cases.
Whether a leave is an “undue hardship” is a case-by-case question. The EEOC has issued guidance on factors to consider in whether a leave poses an undue hardship, including:
- The length of leave requested.
- The frequency of leave (if the requested leave is intermittent).
- The impact on co-workers.
- The impact on ability to serve customers/clients in a timely manner.
- The size of the employer.
In general, to maximize your chance of getting leave, you should start by requesting a short leave and extending it as needed. This is because a shorter leave is less disruptive and is less likely to be an undue burden. Similarly, a larger employer should be able to accommodate additional leave more easily than a smaller employer. These are just generalizations, however, and are no substitute for advice about your specific situation.
You can learn more about what happens when you run out of FMLA/CFRA leave here.
Do I Have to Disclose My MS Diagnosis to My Employer?
No. California’s Fair Employment and Housing Act (FEHA) prevents employers from asking questions about an employee’s diagnosis. Your medical provider’s note can simply say that you suffer from a serious health condition that interferes with your ability to do your job. They do not need to specify that the health condition is MS. Your medical provider should also specify accommodations that will allow you to continue to work or keep your job.
Under federal law, your employer may ask about your diagnosis under certain circumstances, including if you are requesting FMLA leave. They are required to keep this information confidential and may only discuss it with managers and supervisors. However, most workers in California do not need to rely on federal law for leave and their employers cannot force them to disclose a diagnosis.
Can I Take Paid Short-Term Disability Leave for MS?
Maybe. In California, almost all employees are eligible for short-term disability through the EDD. You can tell you are eligible by looking at your paystub and seeing if there is an “SDI” or “Short-term disability” deduction.
Your medical provider is responsible for certifying you for short-term disability with the State EDD or a private insurance plan. The medical provider will determine the duration of the leave.
Can I Be Fired for Having MS?
No. You cannot be fired because you were diagnosed with MS or requested reasonable accommodations. While your employer can fire you because you cannot perform the position with reasonable accommodations, they cannot fire you because of your MS. They first must try to accommodate you so you can continue to work.
Our Cases on Behalf of Workers with MS
We have successfully represented multiple clients suffering from MS who were denied accommodations and ultimately terminated for their medical condition. We have fought large and small employers to win justice for numerous workers with MS.
We provide free, confidential consultations to California workers. You should contact us as soon as possible to make sure your claim is still within the time limits set by law. Contact us today through our website or give us a call at (213) 465-4802 to schedule a free consultation.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.