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For Local Leaders
What is the ADA’s definition of a “Person with a Disability”?
A person with a disability is anyone with a physical or mental impairment that substantially limits one or more major life activities, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. In addition to those people who have visible disabilities—persons who are blind, deaf or use a wheelchair—the definition includes people with a whole range of invisible disabilities. These include psychological problems, learning disabilities or some chronic health impairment such as epilepsy, diabetes, arthritis, cancer, cardiac problems, HIV/AIDS and more. (Documentation of the disability may be required). A person is considered to be a person with a disability if he/she has a disability, has a record of a disability, or is regarded as having a disability.How to Represent a Member with Disabilities
Do represent members with addiction, mental health or stress-related health problems. We have a duty to exercise fair representation and a responsibility to advocate for members who have treatable illnesses.
Accept the fact that stress-related, mental health and addiction impairments are treatable illnesses. Such conditions are likely to interfere with job performance. Disciplinary measures may follow. However, ample proof exists these illnesses are treatable, and many workers return to work fit for duty following treatment.
Acknowledge the effectiveness of treatment. Treatment needs to be readily available and for a sufficient length of time to be effective. Treatment service plans need to be assessed. “Treatment” encompasses inpatient stays, outpatient programs, and counseling.
Negotiate terms and conditions of the return to work following treatment. Enable employees to return to work after appropriate treatment without prejudice when they are able to perform the essential functions of the job. Assure the employer that the individual can perform the essential functions of the job without impairment.
Know the obstacles that prevent treatment and barriers to fair employment practices. If employees are subject to discipline, be prepared to assist them with information and resources. Help employees make their own remedial decisions and find professional support.
Maintain strict confidentiality. Employees have the right to maintain their privacy, and nothing should be said or done that would impair their eventual recovery or professional status. Have a plan to address rumors, stereotypes, stigma and misinformation.
Offer assistance to members who express real or imagined fears about their health condition, absence from work, need to obtain treatment or return to work afterwards. These illnesses are treatable conditions, not moral failings. Reassure members that those who represent them are doing so because it is a duty to fairly represent them. Show them you have the means to enforce the best employment practices.
Prepare to deal with unconstructive enabling behavior. Neither you nor the employer nor other union members can resolve serious medical problems. Seek professional help.
Deal with relapses. All chronic illnesses are subject to relapse on the road to ultimate recovery. When such relapses occur, it is essential to have a relapse recovery plan and representation strategy in place. Members may need a second or even third chance to effectively address the underlying problems given the chronic nature and complexity of the disease. Like other illnesses (such as diabetes, asthma or depression) stress, mental illnesses or addiction are likely to involve extended care.
Exercise your duty of fair representation prudently. Represent members who have a disabling condition. Help them accept that they have the condition. Provide a safe situation in which they can admit they are willing to do something about it. Give them the means to actually do something about it.
It is not your obligation, however, to defend attempts to avoid treatment where necessary or efforts to use representation procedures in order to deny an underlying condition. The best defense is to provide the means for the member to return to work fit for duty.
Help members deal with insurance problems. Seek expert advice. Select insurance plans that recognize these illnesses and commit to treatment.