Background Information
Aaron Charles de la Garza is an Austin, Texas-based attorney who has represented employees and employers in a broad variety of employment law matters for over twenty years. Aaron is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. His scope of representation includes workplace discrimination and harassment, whistleblower and anti-retaliation protections, benefits and pay including overtime and commission disputes, professional licensure, employment contracts including non-competition, compensation, and confidentiality agreements, investigations, drafting and review of policies, and other workplace-related issues. Aaron regularly advises clients with chronic or progressive illnesses as to their workplace rights, and has represented both employers and employees in lawsuits, administrative filings, and mediations concerning the Americans with Disabilities Act and other laws protecting employees with disabilities.
Aaron graduated from The University of Texas School of Law in 2000. He currently serves as the 2020-2021 Chair of the Austin Bar Association’s Labor and Employment Law Section, and has been recognized as a 2020 “Super Lawyer” in Employment Law by Thompson Reuters. Aaron lives in central Austin with his wife, Jennifer, their two young children, and three pretty good cats. More information about Aaron may be found at his firm’s website.
Aaron’s responses to PD Wise’s “Five Questions” provide a partial summary of current law. They are not intended as a comprehensive survey of the law and are not legal advice. Legal advice requires an individualized evaluation of a person’s particular needs and circumstances. Readers should not rely upon any summary of the law, including Aaron’s responses, without first seeking individualized legal advice from a competent attorney. This interview was published on October 1, 2020.
Five Questions
What led you to the practice of employment law, as opposed to another legal specialty?
Happy happenstance. Like many lawyers, my undergraduate degree was in the humanities (The University of Texas at Austin’s Plan II Honors Program). As a decent writer, and bad at math, law school was the obvious choice. I enrolled in The University of Texas School of Law and after graduation starting working at a large Houston law firm.
What led me to employment law? Well, that’s where the Houston law firm put me. I don’t recall being asked what kind of law I wanted to practice, and I didn’t take employment law courses in law school. But I ended up really liking it. This was a relief, given my lack of choice in the matter.
I suppose I could have changed my practice area had I grown tired of employment law, but I never have. With no offense meant to my friends practicing in those areas, I would have been bored senseless in tax or corporate law (not to mention fatally unqualified; see prior comments about my math skills). Employment law is interesting to me. The clients and situations and facts are interesting. The underlying law is always evolving (and never more so than in 2020, particularly given the COVID-19 pandemic).
What laws protect the rights of employees who receive a Parkinson’s diagnosis and are still working?
There are many local, state, and federal laws that could impact the rights of employees working after receiving a Parkinson’s diagnoses. The most significant laws on the federal level are the Title I of the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”).
The ADA is the foundational workplace protections for disabled employees. In broad summary, the ADA grants two important protections to qualified individuals with a disability.
First, the ADA prohibits discrimination in the workplace based upon disability or perceived disability, and prohibits retaliation against an employee for his or her exercise of rights under the ADA. Second, employers are required to provide “reasonable accommodation” to disabled employees and job seekers, which is a modification to the work environment or workplace policies that permits an employee with a disability to perform the essential functions of the job and to otherwise enjoy the benefits of the workplace. These rights, particularly the right to request and receive reasonable accommodation, are very effective tools for those working with Parkinson’s or other degenerative diseases.
Given the importance of the ADA, an employee should know whether his or her workplace is required to comply with the ADA’s provisions. In general, the employment protections of the ADA apply to all private, state and local governmental workplaces employing 15 or more employees; federal employees are granted similar protections under the Rehabilitation Act of 1973. There may also be similar protections available under state or local equivalents to the ADA, which may apply to workplaces that are not covered by the ADA. For example, while the threshold for the Texas equivalent to the ADA is 15 employees, the equivalent in California covers workplaces with as few as five employees.
If there is coverage under the ADA or an equivalent law, most individuals diagnosed with Parkinson’s disease and other progressive neurological or degenerative muscular diseases will qualify as disabled under the Act. I will speak more about the ADA (and, in particular, the ADA’s right to reasonable accommodation) in response to subsequent questions. Additional information about the employment provisions of the ADA may be found at the Equal Employment Opportunity Commission’s ADA resource page.
The second law that may provide protections to employees with a Parkinson’s diagnosis is the federal Family Medical Leave Act (“FMLA”). The FMLA permits qualified employees of certain workplaces (generally, workplaces with 50 or more employees within a 75-mile radius) to take up to 12 weeks of unpaid leave for specified reasons, which include leave required because of an employee’s own serious health condition. The FMLA is also significant to the family members of an individual with a Parkinson’s diagnosis as the FMLA provides qualified employees with up to 12 weeks of unpaid leave when necessary to care for a spouse, child, or parent with a serious health condition. FMLA leave may be taken in a block of time, or it may be taken intermittently, as may be necessary in order to provide for leave for doctor’s appointment or short-term absences. The FMLA provides for the continuation of employer health insurance during the leave, and in most cases the employee retains the right to return to his or her job at the conclusion of the leave. More information about the FMLA may be found at the Department of Labor’s website.
Although not discussed here, there are a number of state and local laws that may require employers to provide paid or unpaid leave. As an aside, there was until recently no federal law requiring paid leave. However, in response to the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (“FFCRA”), which, among other provisions, requires most employers to provide up to two weeks of paid sick leave for certain COVID-19 related reasons (plus an additional 10 weeks of paid leave as required for certain childcare needs related to COVID-19). The FFCRA’s two weeks of paid leave may apply where a medical professional has advised an employee to self-quarantine due an enhanced risk of harm from COVID-19, which is sometimes the case for those employees with neurological and muscular degenerative diseases. More information about the leave rights provided by the FFCRA may be found at the Department of Labor’s website.
What are the most common job-related concerns of employees diagnosed with Parkinson’s and how are these addressed?
Perhaps the most common concern is whether, when, and how to disclose the disease to their employer. With Parkinson’s and other progressive diseases, employees are often aware of their diagnosis long before the time that symptoms would become evident to a manager or co-worker. There is no universally applicable response to this concern, and any advice needs to take into account the specific circumstances of the employee and the job, as well as the nature of the workplace.
Disclosure of a disability is a predicate to obtaining the protections of the ADA and similar laws. An employee is not protected by the provisions of these laws if the employer is unaware of the disability, and the ADA does not require an employer to retroactively excuse misconduct or performance issues that were related to a previously unknown disability. Thus, an employee should generally disclose his or her Parkinson’s diagnosis prior to the point that the limitations of the disease create perceived performance or conduct issues that could lead to discipline or otherwise damage the employee’s standing in the workplace.
If we were looking solely at the law, the answer would appear to nearly always be early disclosure. Indeed, it is hard to think of a scenario in which disclosure wouldn’t be advisable for an employee who is on the brink of termination because of limitations related to his or her Parkinson’s diagnosis. However, many of the individuals with Parkinson’s whom I’ve advised aren’t at the brink of termination. They are high-performing individuals with sterling records whose Parkinson’s hasn’t yet progressed to the point where it is interfering with their performance or even evident to others. They are not immediately concerned with termination and often want to remain employed as long as possible. They are instead looking ahead and planning for an uncertain future, and are understandably concerned with the stigma that might be associated by disclosure of a disease that may be poorly understood by their co-workers and managers.
I do not discount employee concerns about the impact of disclosure, which, depending on the workplace, can be very real. While disclosure should generally still be made prior to the point at which Parkinson’s-related limitations hinder job performance, important considerations as to the timing and manner of disclosure include the employee’s present limitations and projected future course of the disease, the employee’s job duties and the extent to which reasonable accommodation can modify those duties, and the employee’s performance and disciplinary history. And a key consideration is how receptive the workplace and its management are likely to be to the disclosure. An evaluation of this consideration requires an understanding of the interpersonal politics of the situation: the relationships between the employee and his or her supervisors, coworkers, and the executive management.
A second common concern of employees with Parkinson’s and other neurological or muscular degenerative diseases is how they will continue to perform their jobs as their disease progresses. This concern is often addressed via the ADA’s right of reasonable accommodation, which requires employers to modify workplace procedures or the work environment as necessary to permit disabled employees to continue to perform the essential duties of their jobs.
The employer’s obligation to provide reasonable accommodation is initiated by the employee’s formal or informal request for assistance with the limitations of his or her disability. This request triggers the required “informal process” through which the employer and employee exchange information and documents are exchanged, including certain medical documentation. The point of this process is to clarify the employee’s limitations and to identify potential appropriate accommodations that would permit the employee to continue to perform his or her job functions.
Employees should also be aware that there are limitations on an employer’s obligation to provide a reasonable accommodation under the ADA. While an employer is required to grant reasonable accommodation in order to allow a disabled employee to perform the essential duties of his or her job, the employer is never required to simply excuse the employee from the performance of an essential duty. Nor is an employer required to grant a reasonable accommodation that would impose an “undue hardship” on the employer in terms of finances, its operations, and other considerations.
There is no standard list of “reasonable accommodations” under the ADA. Each individual diagnosed with Parkinson’s has different limitations and a different prognosis, just as each employee’s job and workplace are different. As examples only, a reasonable accommodation for an employee diagnosed with Parkinson’s and suffering from tremors could be the provision of voice-recognition software. Fatigue caused by Parkinson’s or its treatment might be addressed by a flexible or modified schedule. Issues with mobility could be addressed by a closer parking space, removal of workplace barriers, or working from home. An excellent resource for potential accommodations ideas is JAN, the Job Accommodation Network. JAN’s page on potential accommodations for Parkinson’s disease may be accessed here.
What are the more common workplace/employer challenges that those with a chronic illness or disability encounter and how do they typically get resolved?
The biggest issues I see are caused by employers’ often incorrect assumptions about the limitations imposed on an employee by a chronic illness or disability. These assumptions are sometimes made with the best of intentions (and sometimes not). Regardless, supervisors are not the employee’s doctor and they are not qualified to ascertain the employee’s current limitations or to make assumptions about the progress of the disease and its future prognosis. Further, these incorrect assumptions can falsely color the employer’s perception of the employee and his or her ability to continue working.
From a legal point of view, the answer is simple: under the ADA, the employer is not qualified to diagnose an employee’s disease or to make assumptions as to the limitations imposed by the disease. But, as a practical matter, an employee with Parkinson’s may find it helpful to educate his or her supervisor or other key personnel about Parkinson’s disease. A potential resource for this process may be found here.
Another common issue arises when employees wait to disclose their disability until after they have been written up for perceived misconduct or performance issues related to the impairments of the illness. Under the ADA, an employer is not required to retroactively excuse misconduct based upon a subsequent disclosure of a disability. While the decision of when to disclose the disability to the employer is difficult, disclosure should generally occur prior to the point when the disease’s impairments begin to impact an employee’s perceived performance or conduct.
Employees should also be cognizant of the limits of the ADA and similar laws. While the ADA does require that employers provide reasonable accommodations in order to assist a disabled employee in the performance of his or her work, the ADA does not shield a disabled employee from discipline for his or her violation of consistently applied performance or conduct standards. If the limitations of an employee’s disability are starting to cause difficulty in meeting these standards, the employee should consider requesting reasonable accommodation. Previously granted accommodations should also be revisited with the employer as necessary to assist in meeting performance standards, since what may have worked well as a reasonable accommodation months or years prior may no longer be sufficient given changes in the employee’s limitations or job duties
What should those with Parkinson’s, and their partners/spouses/families, understand and plan for as concerns living with a progressive disease?
Persons with a Parkinson’s diagnosis should review the terms of any applicable short-term or long-term disability insurance policies to determine their coverage. These policies, which are often obtained through the employer, are all unique. As there is no “standard” disability policy, it is impossible to know the triggers for coverage, extent of coverage, and exclusions without reviewing the plan documents for the policy.
Although this is outside of my field of practice, everyone, including those with a Parkinson’s diagnosis, should have an estate plan, which, amongst its other components, should generally include medical and statutory powers of attorney, which are intended to permit an appointed agent to act on behalf of an incapacitated individual without requiring an expensive and time-consuming legal guardianship.
What are the more significant rewards you experience in your work on behalf of persons with chronic illnesses and/or disability?
Employment law matters because our jobs matter. Right or wrong, many of us define ourselves by our jobs, spending more time at work alongside our coworkers than we do with our families. Losing a job we love (or even just one we need) is one of the most devastating events in our lives. to some of us, it can seem like a loss of our identity.
Given the importance of work in our lives, worries about whether one’s job will be lost in the future can be overwhelming. In my experience, this is doubly true for employees who have been diagnosed with a progressive illness. While we all probably place too much importance on work, I derive great satisfaction from helping employees with chronic illnesses address some of the uncertainty around their employment.
__________
Thank you, Aaron, for speaking with PD Wise and for the important work you do on behalf of many.