In 2012, the old, water-damaged building in which I was working made me ill. I was a human resources professional and a licensed attorney with more than 15 years of professional experience, yet I was unable navigate the ADA reasonable accommodation process successfully. Ultimately, my experience says more about the organization’s leaders than my professional competence. However, I hope sharing what I learned from that experience will prevent other CIRS and mold illness survivors from experiencing the difficulties I faced.

The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination on the basis of disability and applies to employers with 15 or more employees. ADA regulations include a non-exhaustive list of a wide variety of disabilities. Although they do not specifically list CIRS and mold illness, many individuals will qualify as persons with a disability because the physical and mental impairments caused by CIRS and mold illness often substantially limit one or more major life activities. 

The congressional intent of the ADA Amendments Act of 2008 (ADAAA) was to shift the burden from the employee to prove that they have a disability, to the employer to prove that the company has engaged in an interactive process to determine if it can offer the employee a reasonable accommodation. 

A reasonable accommodation is a modification or adjustment to a job, the work environment, or the way things are usually done to enable the employee to perform their job tasks. Unfortunately, the ADA case law shows that the amendments haven’t really worked as Congress intended when employees move forward with litigation, but the following are a few tips to help navigate the process.

1. Find and consult with a healthcare professional knowledgeable about CIRS and mold illness.

One of the primary difficulties I faced was that the healthcare practitioners I consulted were unaware of CIRS and mold illness. They acknowledged that I was sick but misdiagnosed me and prescribed ineffective treatments that arguably exacerbated my condition. Additionally, my allergy specialist and primary care physician seemed to misunderstand the accommodations process. The allergy specialist refused to check the box stating that I had a disability that required a reasonable accommodation. Consequently, you should keep in mind that you may be forced to assume the additional burden of educating your doctor about the ADA process. 

With your physician, make it clear that you need the paperwork to state that you are experiencing physical and/or mental impairments for which you need modifications or adjustments to your job, the work environment, or how things are usually done to enable you to continue your role. To convince your physician to complete the medical certification requested by your employer correctly, it may be necessary for you to emphasize that you are attempting to avoid leaving your job and/or utilizing short-or long-term disability benefits.

Fortunately, a higher percentage of healthcare practitioners are now aware of biotoxin illnesses and know how to treat them. The more informed the healthcare practitioner is about CIRS and mold illness, the less likely you are to face additional hurdles because they will understand which accommodations will allow you to manage your condition successfully.

2. Understand your rights under ADA and ADAAA, and signal this knowledge to your employer by using specific language.

First, familiarize yourself with the basic legal obligations under ADA, which you can find here: https://www.eeoc.gov/fact-sheet/facts-about-americans-disabilities-act.  The ADA Information Line is a great employee resource: https://www.ada.gov/infoline/, 1-800-514-0301. You can also refer your employer to the ADA National Network for compliance assistance: https://adata.org/technical-assistance, 1-800-949-4232.

Second, although the law does not require employees to specifically request a reasonable accommodation, doing so will signal that you understand your rights under ADA and ADAAA. Furthermore, I recommend that you not only specifically request a “reasonable accommodation,” but that you also incorporate the following language:

“I would like to engage in the interactive process to help us determine a reasonable accommodation that will help me both perform the essential duties of my job and successfully manage my illness and protect my health.”

Under the ADAAA, the focus should be on the interactive process. The employer has a legal obligation to seek information to evaluate the need and feasibility of your request. You can read more about an effective interactive process at  https://www.doi.gov/sites/doi.gov/files/employee-resource-effective-interactive-process.pdf.

Note that you may ask for a specific, reasonable accommodation, but the employer is not obligated to grant your request. Instead, the organization may offer other options and even argue that your request would create an undue hardship (a significant difficulty or expense). If the employer offers an accommodation that will not help you manage your condition, do not summarily reject it. Ask your healthcare practitioner to explain the deficiencies of the offered accommodation in writing and attempt to negotiate a better solution. Otherwise, the employer’s offer will likely be used to defend any legal claims that the organization violated disability law.

3. If the employer refuses to engage in the interactive process, don’t be afraid to retain legal counsel.

Understanding that not all employers will “do the right thing” or comply with the law, I often tell my students,  “you don’t have rights until you assert them.” Therefore, if your employer refuses to engage in the interactive process or grant a reasonable accommodation, it may be necessary to seek the assistance of a mold-literate attorney, such as Kristina Baehr at Just Well Law, or an employment attorney with experience in the Americans with Disabilities Act. Honestly, litigation usually isn’t the best solution, but often the threat of litigation will make the most unethical employers weigh the pros and cons of refusing to comply with the law.

4. Prioritize your health.

Finally, prioritize your health even if your employer refuses to offer a reasonable accommodation that will allow you to continue in your role. Recovering is usually impossible if you remain in an environment that is making you ill. Deciding to leave my job without securing another one was difficult, and it took me years to recover financially. Nevertheless, I do not regret my decision. I honestly believe that I would still be severely ill or that I would have died if I had continued to work in that water-damaged building. Our health is our most valuable asset.

About the Author:

In addition to being a “mold survivor,” Vanessa L. Johnson is an Associate Professor of Legal Studies at the University of Houston – Clear Lake, a Texas licensed attorney, and a multi-certified human resources professional.  You can learn more about her and/or connect with her at https://www.linkedin.com/in/vanessaljohnson/.  You can also reach her via email at [email protected].

Disclaimer: The Change the Air Foundation ("CTA") is making this article available online solely to provide information to the interested public. The views and opinions expressed do not necessarily reflect those of CTA are not intended as a substitute for competent medical or legal advice. Neither CTA nor any of the presenters makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information provided.