Understanding Your Rights: ADA, FMLA, & when to call an attorney

In this episode of Living Chronic, Brandy Schantz speaks with attorney Gary Martoccio about the intersection of employment law and disability rights. They discuss the importance of disclosing disabilities, navigating workplace accommodations, and the impact of remote work on disabled employees. The conversation also addresses the challenges of resume gaps for those with chronic illnesses and the legal protections available under the ADA and FMLA. Gary emphasizes the need for documentation and understanding one's rights, while also providing guidance on seeking legal support. The episode concludes with a call to action for advocacy in the workplace to support disabled individuals.

https://martocciofirm.com/

Transcript

Brandy Schantz (00:01.016)
This is Brandy Schatz and you're listening to Living Chronic. Today I'm speaking with Gary Martoccio. He is an attorney. He works in employment law and represents disabled people. He represents the clients against their employers when things have gone wrong in the workplace. So welcome, Gary.

Gary Martoccio (00:22.21)
Thanks, Brandy. Appreciate you having me.

Brandy Schantz (00:24.61)
Now I'm so happy you're here. It's been a rough month. So I know I had to reschedule. But, you know, poor you. You're used to working with people with various chronic illness and disabilities. So I'm sure you know our crazy lives.

Gary Martoccio (00:40.442)
That's right. That's right. Yeah. A lot of my practice covers individuals dealing with medical issues. There's some laws that protect employees that are going through things like that. The ADA, the American Disabilities Act, the FMLA, the Family and Medical Leave Act. So those are two of the main laws that we work with, among a few others. yeah, we, I'd say 50 % or more of our cases are covering the ADA.

and or the FMLA.

Brandy Schantz (01:09.58)
Mm-hmm.

You know, there's a lot of distrust in the disabled and chronically ill communities when it comes to disclosing your disability or asking for accommodations. And while some of that mistrust may be misplaced in certain situations, I think a lot of that mistrust does come from experiences, you know, things that we've been through ourselves or what we've witnessed other people going through. So,

What would you say to somebody who is very distrustful of even disclosing that they have a disability?

Gary Martoccio (01:48.888)
totally get it. I understand there's a stigma that comes with it and you're worried how the employer is going to treat you once you disclose it. But I think it's important to document that you have a disability. That's not something you necessarily need to do during the interview process or anything like that. In fact, employers shouldn't be asking you about that during that process. if you are employed and

You need time off for medical reasons, you need accommodations due to medical reasons, you need an adjusted schedule, anything along those lines, I would unequivocally state why. And what I find is a lot of employees that are dealing with medical stuff will make up some other reason. And that doesn't protect you, right? They'll try to say, hey, I need time off due to childcare, or it won't give a reason. You want to be clear about it.

Brandy Schantz (02:44.012)
Mm-hmm.

Gary Martoccio (02:46.148)
because you have protections if you're missing time due to medical issues or you need an accommodation due to medical issues. So be clear, be concise about it, document it in writing. That will trigger the employer to have to engage with you. And if they need more information or documentation, then you provide it. And I'd say most employers will cooperate. They understand the law. And the ones that don't, you know,

you ever are going to have to bring a legal claim, you want to have that documented because I have a lot of situations where a client will come to me and our biggest flaw of the case will be the lack of documentation. You want to be clear about it. I get why employees are uneasy about it, but it's only protecting yourself and it puts the employer on notice and that triggers certain responsibilities on there.

Brandy Schantz (03:27.694)
Mm-hmm.

Brandy Schantz (03:42.338)
You know, what's interesting is I think this spans all people. It doesn't matter if you're, you know, working in an admin position or if you're an executive at a company, I've always been very, well, I have not always been very open, but I am very open now discussing how many mistakes I made early because I was so scared of telling somebody I had a disability, telling them that I was dealing with chronic illness and I hid my own.

So, you know, it's not just, you know, that, you were being silly. I was stupid. I didn't think to document. This really does span all sorts of different people because we're all going through the same thing in many ways. We're all scared on some level.

Gary Martoccio (04:29.456)
Absolutely. Yeah, you'll see it all over the place from, you know, employees that are dealing with jobs where that are very physically demanding, you know, they're having physical restrictions or limitations to, you know, those dealing with, you know, mental disabilities, you know, where they need certain accommodations for that to, you know, like you said, executive level positions, maybe there's some restrictions on travel or hours that you're able to work or the

Brandy Schantz (04:47.694)
Mm-hmm.

Gary Martoccio (05:00.18)
you know, and yeah, if you, if you need an accommodation, if you need time off related to a medical condition, be, be clear about it. You know, talk to your employer about it. HR is the typical route to go as far as sharing specifics on the condition. and you want to make sure that, that you're communicating, because it's only protecting yourself. you know, and if not, you're kind of a fish out of water, you know, because the employer can only.

Brandy Schantz (05:25.134)
Mm-hmm.

Gary Martoccio (05:27.908)
be held viable for what they do know and employers obviously don't want liability. So once they know, they're going to take a certain legal precautions that they need to and if they don't then, you you need to set yourself up, you know, to take legal action if necessary. But most of the time, like I said, most employers will do the right thing, you know.

Brandy Schantz (05:47.918)
Right.

Gary Martoccio (05:50.768)
If you're a good worker, no one wants to lose an employee. They want to work with you. They want to try to make it work and make you comfortable. So, you know, and again, if they're not that type of employer, then they're probably not going to be sympathetic to you if you're not disclosing your disability, if they're not working with you when you do. So I see no harm in being clear and documenting it traditionally.

Brandy Schantz (06:05.57)
Right?

Brandy Schantz (06:15.566)
You know, that conversation is very timely for many reasons. The first being, we're still, well, I don't know what we want to call it, recovering from the pandemic, if you will. And the pandemic was so interesting in that so many people who had never worked from home before went home to work. And so many disabled people who were sitting at home unemployed suddenly found themselves able to be employed. Of course, now as we are

past the end of the pandemic, we are recovering, we are whatever you want to call it, there's a big push of return to office. And as much as that pendulum swung in one direction, and unfortunately there wasn't a whole lot that we could do at that moment, everybody just had to go work from home, when it came to return to office, we seemed to be swinging the other direction and there's a lot of...

mass return to office, there's a lot of people scared of what might happen to them when there's a return to office because they do have chronic illnesses or disabilities that require them to be able to work from home at least part of the time. So how much of this have you been dealing with in this kind of push-pull right now of do we return to office, should we not return to office, hybrid work, what's a reasonable accommodation? What are you seeing right now?

Gary Martoccio (07:37.122)
Right. I think that last question you had, what's a reasonable accommodation? I think that's changed over the course of the last five years. You know, the way that the law looks at it is, the accommodation reasonable? Are you able to perform the essential functions of your job? And let's say the accommodations working remotely, can you perform the essential functions of your job? And does it create an undue hardship on the business? That's the standard that you're looking at. That's the text of the law. And I think

Brandy Schantz (07:44.534)
Mm-hmm.

Gary Martoccio (08:07.246)
we've shown over the last five years that working remotely is a reasonable accommodation. You can perform the essential functions of your job. It's not creating a hardship on the business because we've been doing it for the last five years. it's, you know, you can look at various professions and look at the metrics and you can see, you know, profits businesses are making in that, that I've made with with the workforce. So, you know, it's definitely a topic I spoke on a panel not too long ago.

at a law school here in the Tampa area, Stetson Law School, and this exact topic came up and that was the answer that I gave. was, know, what's a reasonable accommodation has changed. Now, have we seen the courts flush this out? Because the court's going to see how the laws have, are being interpreted, right? They're going to interpret the law for us. And I think the interpretation is going to change over time as to, you know, is it reasonable to work remotely? Before it was probably not.

Brandy Schantz (08:56.814)
Mm-hmm.

Gary Martoccio (09:06.576)
Right, probably not. Now, I think you're seeing a change and I think the court's interpretation is going to change. You know, and I've seen a lot of cases resolved before it gets to that point. You know, I haven't seen one all the way through a judgment or an appeal, you know, or Supreme Court ruling myself, but I think a lot of employers are recognizing that the interpretation is going to change. it's just a matter of time and you're seeing a lot of cases like that resolve.

more employees are being asked to come back to work that have proven that they can perform their job and it's not creating a hardship on the business with them working.

Brandy Schantz (09:45.006)
Mm-hmm.

Yeah, it really did change the landscape. certainly on this show, and I've spoken about this in my business, had great conversations about this with various employers. When you bring disabled people back into the workforce, it's good for everybody. You get talented workers, often resilient, often very nimble, able to adjust to change quickly.

They're not on the public dime. You're getting people off of disability. You're getting them off of, you know, other kinds of government aid. And of course it's good for our mental health when we're employed. It's good for the community at large. There's so many benefits to it. So I'm always hoping and pushing that we continue to have very smart and thoughtful conversations around return to office. I myself love

being able to collaborate in person sometimes, but as somebody with, well, now a few diseases with Crohn's disease and dysautonomia, it is absolutely imperative that I be able to work from home from time to time. I just can't leave my house. So these kinds of things do keep us involved in our communities and they're a tremendous benefit to everybody. It's not just a benefit to...

the employee, it's not just a benefit to the employer. There's so many benefits. They're just too long to list. Now, all that being said, another conversation we've been hearing about a lot, I've had a big conversation about this on LinkedIn last week. It's the resume gap. The resume gap. So often people who are suffering from various chronic illnesses have to take time off work to deal with their illness.

Brandy Schantz (11:37.878)
I have an interview that will be coming public coming out this week with a woman. She was interviewed by Fortune magazine as well. She was a real rising star in IT. Then she was diagnosed with breast cancer. At the advice of her doctor, she took some time off work to focus on her health and her treatments and beating cancer. She beat cancer. So once she beat cancer, she said, all right, that's it. I'm getting back into the workforce. Well, a year and a half later, she's still unemployed.

Of course, the federal law says you cannot take that resume gap into consideration if it targets a specific protected group. But I think we all know that anybody with a resume gap, you're immediately pushed to the side and disabled people are overlooked and often completely locked out of the workforce due to having to take some time off work to take care of their own illnesses.

So have you been seeing any specific cases around this? What are the difficulties around actually prosecuting something like this? Or are there other ways that we can advocate for disabled people to get companies to really not look at that resume gap and maybe even take a look at it and think of it as a growing experience with providing people with the kinds of resilience that every company says they want, but doesn't necessarily have.

Gary Martoccio (13:04.228)
Right. Yeah, I'd say the failure to hire cases are some of most difficult to combat just because, you know, if you're an employee and you're terminated and dealing with a medical issue, it's isolated. It's you and you're just battling it.

Brandy Schantz (13:19.342)
Mm-hmm.

Gary Martoccio (13:25.932)
stuff but on the failure to hire they're getting you know hundreds of resumes and it's a little easier for them to say you know look one person got this 99 people didn't so it's not just you that we're targeting right whereas if you were terminated so that's what that's what makes those difficult but I'd say I think the first thing I'd say if you're dealing with something and you need to step away from work that doesn't necessarily mean that you need to resign your position

Brandy Schantz (13:40.162)
Mm-hmm.

Gary Martoccio (13:53.012)
You can go on a leave of absence, even if that leave of absence is unpaid. Let's say short-term disability benefits run out because you can use those concurrently with a medical leave. If you're FMLA eligible, that gives you at least 12 weeks of job protected leave. There's some other requirements to meet eligibility under the FMLA. You have to be with the company one year. The company has to have 50 or more employees within a 75-mile range.

So let's say you're from LA eligible that gives you 12 weeks of job protected leave and you know, most companies will grant you leave beyond that. Albeit they may be unpaid, like I said. But I would recommend that to those that may need to step away versus resigning that way you don't get as far of a resume gap. you know, like I said, you don't have to disclose your condition in interviews, but if there's a resume gap and it's an explanation, I don't think it hurts to, right?

That's maybe more personal advice than legal advice, but who would hold something against someone that was dealing with a battle with breast cancer and is ready to get back to work? You would hope an employer wouldn't. And again, if you document that condition and they do use that against you, that's going to be a potential legal claim against the employer. I think you wouldn't be hurting yourself by letting them know the explanation.

Brandy Schantz (15:18.144)
Right. Yeah, I mean, I think that could go either way. I've heard a lot of people discuss the hesitation to really bring it up because sometimes that is something that they will hold against you because you can't be sued by someone who is being wrongfully terminated for medical reasons if you just never hire the person with medical problems. So it gets ahead of a problem before you even have one.

And I think a lot of people do fear that because if you have chronic illness, there's this immediate assumption and not completely wrong that you're going to be out of work from time to time dealing with illness. you're with my illness. We already know if I'm in a flare, you got to let me work from home. I'm not leaving my house before noon. I might be able to get out of here afternoon, but forget it before noon. It's just not going to happen. So you already know that there are times where you're not going to have me in an office.

before noon. And, you know, I think that sometimes, sometimes employers do discriminate. Sometimes I think we're just more scared that they will, but it's always hard to tell. like you said, it's hard to prove those things. So it goes back to your first piece of advice, document, document, document. And if you can keep that job, hold on to that job and keep documenting so that you don't get the resume gap.

Gary Martoccio (16:46.658)
Exactly. Yeah, that would be my first recommendation there. You're at least going to get some period of time off. So I wouldn't think that you'd have to resign. Heck, most companies, if you're dealing with something where you need to take off some time to fight it, I wouldn't see why they wouldn't grant you the time. Yeah, exactly. Now, they may say it becomes unpaid after a certain point or

Brandy Schantz (16:47.916)
Yeah.

Brandy Schantz (17:06.754)
Depends on the industry. Yeah.

Brandy Schantz (17:14.318)
Mm-hmm.

Gary Martoccio (17:15.204)
or maybe your job's not necessarily protected, like let us know when you're ready to come back and we'll let you know what the status is, but at least you're staying on the books essentially as a...

Brandy Schantz (17:24.332)
Right. Right.

Yeah, I think it could be scary for a lot of people. I worked in consulting and I've actually spoken to numerous people in this podcast who were in consulting and facing breast cancer, other cancers, chronic illnesses, and ended up being terminated suddenly when they tried to take their FMLA leave.

You know, think that often people, know, when we have these fears, they're sometimes warranted and especially depending on the industry consulting is not really one for hiring people who don't want to work at least 60 hours a week and never take a day off. So, you know, keeping in mind your industry, think is helpful.

So, you you're talking about document everything, communication. What other advice do you have for somebody facing a sudden illness or disability and trying to figure out, just navigate the workplace and what they need to do?

Gary Martoccio (18:31.012)
think know your rights, be educated on them. Like I said, know what's out there, know what the FMLA is. And a lot of people think FMLA is only if you need to be out for like an extended period of time. Like I need to be out for six weeks from X date to X date. It's not just that. You can use FMLA intermittently, meaning once you have it approved, let's say someone dealing with the conditions that you are, Brandy, let's say.

And you just need to have a day off due to a flare. Then you can call out under your already approved FMLA. The paperwork usually says when your doctor may miss three to four days a month due to flare ups as necessary or whatnot. And you can miss time here and there and not be targeted for it. So, and even if you're not FMLA eligible, you still have protections under the ADA, the Americans with Disabilities Act.

If you do have a condition that has flare ups, you want to document that. Even if you haven't been there a year or the employer isn't big enough, you want to let the employer know that I may need an accommodation of time off here or there, time off for doctor's appointments. Know your rights and don't be afraid to be clear with your employer about what you're going through. And don't just say general things such as,

I'm sick or whatever right because then they're gonna assume like you just have the sniffles and is that protected under the ADA or the FMLA? No, it's not. So be clear, you know, let them know what the diagnosed condition is.

Brandy Schantz (20:02.765)
Right.

Brandy Schantz (20:13.752)
So obviously, things do go sideways from time to time, or else you would not have a job. So when things do go sideways, when you have been terminated, when you are facing difficulties getting a reasonable accommodation, you're licensed in nine states. How do people reach you? How do they find an attorney in places you aren't licensed?

that can help them when is the right time to call an attorney?

Gary Martoccio (20:45.232)
Yeah, you don't have to wait until you're terminated, will say. Sometimes I'll tell people, and maybe a little bit premature, but then there's other times when someone's still employed where I'll tell them, I think this is a situation where we can go in and work something out right now before you hit that termination situation where you're without a job. yeah, you can contact me, visit our website, it's martasiofirm.com.

Brandy Schantz (21:04.718)
Mm-hmm.

Gary Martoccio (21:14.638)
that I go over on the website, the type of claims that we handle. We have a case evaluation process where you can either complete a form online or call us and we'll walk you through the process and we'll let you know if we believe we can help. But yes, you can start seeking an attorney prior to the termination if you're dealing with ADA or FMLA related issues or most of the cases we have and someone has been terminated already.

But again, it's not necessary to wait until you're terminated. If it's not a state that our firm's licensed in, I think running an internet search, there's some good search engines. Super Lawyers is one of them that has a good list of lawyers in your area. There's a NELA, N-E-L-A.org. It's the National Employment Lawyers Association. You can look for an attorney in your area that has a specific.

Practice area may specialize in the ADA or FMLS. So that's another good resource. know, just a good old Google search helps sometimes too. But those first two that I mentioned are good search engines.

Brandy Schantz (22:21.856)
Mm-hmm.

Gary Martoccio (22:29.003)
of the practice and let you know.

Brandy Schantz (22:33.126)
I think this is just such an important conversation right now. It's always an important conversation. But of course, it's really top of mind. So many people are really frightened of that return to office. What do I do when I need these accommodations? And knowing what to do and how to document and keep those lines of communication open really makes the difference between not having a job or...

you know, knowing how to navigate that so that you keep your job with the reasonable accommodations or have the right things documented so you can contact an attorney such as yourself when things come to that. So I really appreciate this. It's just so timely. you know, I'm always looking for solutions because it's hard. How do we stop the resume gap bias? How do we get rid of that? Because not everybody has a job that offers

short-term disability. I think for many of us, the first thought is, let me quit my job and get through this and then I'll go back, which may not be the best action, as you talked about. So, so important. I really appreciate you coming to speak to us and talk to the Living Chronic Nation because this is, it's really important. And I have made it.

such a cornerstone of my own advocacy to keep people employed and get people employed. It's so good for our mental health.

Gary Martoccio (24:07.312)
Absolutely. Yeah, I'd say on the resume gap issue, if you're not planning on working elsewhere, there's no reason to resign your position. Stay employed as long as you can. Maybe a lot of people are thinking, I don't even want to go back here anyway at the end, but I don't think you'd turn yourself or the company just to stay employed and long as you can and go on a leave of absence and see where you're at when you're ready to return. I think most companies will be sympathetic with that and that'll...

Brandy Schantz (24:33.102)
Mm-hmm.

Gary Martoccio (24:37.05)
you know, avoid any resume gap issues and heck maybe you guys will be able to work out.

that you were working with at the time you had your...

Gary Martoccio (24:48.912)
should be able to maintain your benefits too. I wouldn't, you know, now if you're not getting a paycheck in, you may have to pay the premiums out of pocket, but you know, and even if you don't want to do that, you still can remain employed and not have the benefits, right? If I would imagine you'd want to keep those, but if not, there's still no reason to resign unless they make you, right? I'd wait until the very last minute. And again, you're not hurting the company or hurting anything by.

Brandy Schantz (24:51.458)
Mm-hmm.

Brandy Schantz (25:11.082)
Right.

Gary Martoccio (25:17.646)
you know, just staying on an unpaid leave.

Brandy Schantz (25:21.038)
Yeah, you know, I think that's just amazing advice because the knee jerk reaction, think, by everyone is let me just get out of here and focus on my health, especially if you have other benefits. Maybe if you're married or, you know, a retired military disabled veteran, we all have insurance outside of our employment as well. So that's really great advice to help stop that knee jerk reaction.

Gary Martoccio (25:33.562)
Right.

Gary Martoccio (25:38.199)
Exactly.

Brandy Schantz (25:48.13)
Well, thank you again. I'm going to be sure to put your website in the show notes and include you on my website, brandyshontz.com. Thank you again. I really appreciate you coming on the show.

Gary Martoccio (26:01.04)
Thanks so much for having me Brandon, it a pleasure. Thank you.