COPD and Employment Protection

Last night, my wife and I watched the 1993 film “Philadelphia”

Wonderful movie.

A bright, young attorney (Tom Hanks) who is HIV-positive is fired from his job at a prestigious law firm because of the disease. He ultimately wins a lawsuit against the firm because his attorney (Denzel Washington) is able to prove discrimination based on Hank’s character having AIDS.

Employment rights for COPD patients

In no way am I trying to compare the diseases but, it got me to wondering what our employment rights are as COPD patients.

I spent a great deal of time looking for an article or study or law case that would simply say we are covered by the ADA – Americans with Disabilities Act – and that would protect us from being fired from a job simply because we have COPD.

But, unfortunately, it doesn’t seem to be that easy.

Disability discrimination

“Disability discrimination occurs when an employer...treats a qualified individual with a disability who is an employee...unfavorably because she/he has a disability¹.”

Under the Americans with Disabilities Act, some chronic conditions are considered to be disabilities, and, in many cases, COPD can be considered a disability².

The most definitive case I could find (2018) regarding discrimination against an employee with COPD, in fact, the ONLY case I could find is a lawsuit:

“U.S. Equal Employment Opportunity Commission v. Two Peaches Group, LLC, d/b/a Value Village, Civil Action No. 1:18-CV-1916-WSD-JCF.”

Beginning in or around January 2016, according to the lawsuit, Marjorie Clark, an employee of a company called “Village Value” in Atlanta, Georgia, requested that she be allowed to wear an oxygen backpack at work where she stocked shelves, to treat her symptoms of COPD and emphysema.

But the company’s management refused.

Marjorie’s symptoms got worse and she requested a transfer to a less strenuous position. But the senior management of Value Village denied her requests. She continued to work, without using an oxygen backpack.

On June 5, 2017, after being hospitalized with exacerbations and infections, Marjorie resigned from her job. In her lawsuit, she stated that Value Village's denial of her backpack request had compromised her health.

Marjorie and her attorney filed a charge of discrimination with the Equal Employment Opportunity Commission, EEOC. They determined that there was reasonable cause to believe that the Americans with Disabilities Act was violated.

The EEOC tried to reach a settlement with Value Village.

That failed and the EEOC sued the company on Marjorie’s behalf stating it violated federal law when it failed to accommodate Marjorie’s request, thereby forcing her to resign from her employment.

EEOC spokespersons stated: “...an employer should never dismiss an employee's request for a reasonable accommodation for his/her disability. The appropriate accommodation is best determined through an interactive process that involves both the employer and the employee who has a disability³.”

The EEOC’s case on behalf of Marjorie’ is still winding its way through the courts and may take even more time.

Reasonable accommodations for a person with COPD

Obviously, not all employers are as awful (I can’t really write what I’d like to write) as Value Village and, for many of us, there are ways to continue working productively and earning a living while living with COPD. And many employers (my former employer for example) make “reasonable accommodations” so that you can continue to perform your job, post-diagnosis.

Reasonable accommodations for a person with COPD can be things like having a parking space close to your worksite, being allowed to work from home and having a flexible schedule with time allotted for taking medications and doctor's appointments.

Even with accommodations made, many, many times, the question, “Should I Retire?” poses itself. Early retirement because of COPD can have a negative effect on your savings and general finances. There’s a wide range of elements that go into being considered for a Social Security Disability benefit and private pension payments. For those reasons, don't accept any early retirement offers from your employer without consulting with folks who know a great deal about disabilities, social security, and pensions.

But above all – don’t let anyone push you out of your job if you’re not ready to leave!