By Katherine Macfarlane • July 29, 2018•Careers, Firms and the Private Sector, Issues, Balancing Private and Professional Life, Sexism, Sexual Harassment, and Other Forms of Discrimination
Now that the bar is over, many of you will soon head off to your first post-law school job. Congratulations! You’ll be making choices about healthcare, retirement savings and life insurance. If you’re disabled, it’s never too soon to start thinking about the accommodations you’ll need to work efficiently. What follows are some tips to help ensure that your accommodations are in place as soon as you need them.
Don’t Wait to Ask for Accommodations
To qualify for reasonable accommodations at a new workplace, you’ll often be required to fill out a stack of paperwork and obtain medical documentation of your disability. If you know that your disability may or definitely does require an accommodation, do not wait to ask for it.
Accommodations, once granted, are not retroactive. What does this mean? If your disability requires you to leave every Monday at 4:00 p.m. to attend a doctor’s appointment, and you exhaust your sick leave to do so, without an accommodation in place, you will be forced to take unpaid leave, to the extent it’s available to you. Unpaid leave itself is a terrible option, and it too can be exhausted. If you exhaust all leave, you could be fired. There are some key facts to remember to avoid this worst case scenario.
Until employers know you’re disabled, they’re not required to intuit that you are. That is, you don't receive accommodations until you affirmatively ask for them. To protect yourself, ask for accommodations as soon as you realize the need arises.
If you’re aware that your disability may require some adjustment related to the time you spend in your office, ask for the accommodation even before you start your new job. That way, the first time you leave at 4:00 p.m. on a Monday for reasons related to your disability, you may already have an acommodation that excuses you from taking leave to do so. That accommodation will protect you from the situation described above.
Talk to the Person Assigned to Disability Accommodations
Some may advise you to seek the help you would receive through accommodations informally, that is, by asking someone who isn’t in Human Resources to help you. Don’t do it. Go through the proper channels to ensure that you’ve complied with the steps required by the Americans with Disabilities Act so that if you need that Act’s protection, you will be entitled to it. Informally talking to Bob about leaving early on Mondays doesn't grant you any kind of protection.
It’s easy to assume that workplaces that employ lawyers are great at following the law. I’ve found that when it comes to anti-discrimination laws like the ADA, this is just not the case. Don’t assume, for example, that though your reasonable accommodations should be kept confidential, they will be.
Confidentiality is meant to ensure that the people you work with don’t treat you differently because of your disability. There are several exceptions to the presumption of confidentiality that attaches to your reasonable accommodations documentation. Some individuals may receive information about your disability, including managers, supervisors, and safety personnel, among others. The exceptions are meant to communicate material information to those who need to know about work-related limitations or how to help you in an emergency situation.
But there are many ways to keep the fact that you receive accommodations (which itself is information that communicates that you are disabled), your medical diagnoses, and the accommodations you receive to a very small group of people. I’ve successfully argued, for example, that when a Human Resources supervisor orders ergonomic furniture pursuant to a reasonable accommodation, the person assigned to assemble that furniture does not need to know why. Unfortunately, before I raised this point, the default was to send an email to the furniture assembler explaining that the furniture was being assembled for me pursuant to a reasonable accommodation.
I’ve communicated my preference that the fact that I receive accommodations, and what my accommodations are, remain as confidential as possible. I’ve asked, for example, that if the letter detailing my accommodations is distributed to an additional person, that it be redacted to communicate only the information that person needs to know. I’ve even offered to do the redactions myself.
I don’t think people overshare information because they act in bad faith. It just doesn’t occur to them that accommodations are sensitive information.
As a lawyer, you will become very skilled at determining what aspects of a document can and cannot be disclosed to opposing counsel. Put that skill to use when it comes to your own records.
What to Ask For
There are some obvious accommodations that come to mind and are very easy to obtain. Ergonomic furniture can help you avoid an injury and is a good idea for all employees. It's the kind of accommodation that you shouldn't hesitate to ask for, and has become normalized.
Hours are an entirely different beast. When I practiced law, I worked approximately 60 hours every week (get ready, new lawyers). At my Big Law job, if I billed less than 3.5 hours during any weekday, I had to use sick leave or vacation time to hit the required minimum. This was true even if I worked 10 hours on Saturday and Sunday, and 60 hours total that week. Even with my many doctors’ appointments, it was rare for me to bill anything less than 3.5 hours on a given weekday. But in retrospect, I could have asked for an accommodation that allowed me to bill an average of at least 3.5 hours every week. If my absences were related to my disability, and overall I was working just as much as my peers, I shouldn’t have been penalized.
Isn’t this what sick leave is for, you may be thinking. Well, sick leave evaporates quickly when you suddenly need to use it. I’ve always stockpiled my sick leave in the event that I need, for example, to recover from surgery. If you have a good reason to avoid using it for infrequent but necessary medical appointments related to your disability, and the appointments don't affect your ability to perform your essential work functions (because, for example, you still hit your monthly billable targets), make the case that your hours should be averaged out across a week or a pay period.
There is nothing fun about seeking reasonable accommodations. It’s a negotiation, and if your disability is long-term, the negotiation never ends. As a new employee, it’s hard to predict what your job may entail, and what you need to ask for. If you move offices, for example, are you entitled to have someone move boxes for you? Generally, yes, if your disabiity makes it hard to do so yourself. But if you didn’t foresee the office move during the first round of reasonable accommodation discussions, you’ll have to go back and ask for an amendment to your original accommodations. It’s worth it, but it’s exhausting.
In my experience, accommodations are often treated like favors bestowed upon disabled employees. Of course, to obtain accommodations they have to be reasonable, and you are never excused from performing your essential job functions. There is no privilege that accompanies living with a disability. Still, disability discrimination persists, and you will face it.
Act as your own advocate. Don’t wait to get what you’re entitled to, lawyer your way to the confidentiality you’re comfortable with, and have confidence in knowing that the ADA is meant to keep you in the workforce, relatively happy and definitely productive. You belong.