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Don’t let periodontal claim gum up ADA works

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in FMLA Guidelines,Human Resources

Not every condition that’s labeled a “disease” is considered a disability under the ADA. Recently a federal court in New York concluded that periodontal disease, even if painful, isn’t disabling and absent extenuating circumstances won’t need to be accommodated.

Recent case: Gloria taught English for Speakers of Other Languages (ESOL), but lacked specialized certification in the field that is now required.

Around the time ESOL teachers needed to become certified, she requested time off to deal with a flare-up of what her dentist called “profound periodontal disease with accelerated bone loss of the lower jaw.” Her request was denied.

Then she was terminated for not having the specialized certification.

Gloria sued, claiming failure to accommodate and that she was fired in retaliation for requesting a reasonable accommodation.

The school district argued that Gloria wasn’t disabled under the ADA or entitled to FMLA leave because the condition was neither a disability nor a serious health condition. Gloria tried to persuade the court that periodontal disease kept her from “­adequately” communicating.

But the court said that wasn’t good enough. She would have to show that it substantially im­­paired a major life activity. The judge concluded that there were no other cases on record that accepted periodontal disease as disabling. In addition, the FMLA regulations specifically cite periodontal disease as a health condition that’s not considered serious. Gloria’s lawsuit was dismissed. (Dancause v. Mount Morris Cen­­tral School Dis­­trict, No. 13-CV-6019, WD NY, 2013)

Final note: Under some circumstances, periodontal disease might qualify as a disability or a serious health condition. That could happen if the employee has complications, such as severe bone loss that necessitates surgery or other extensive treatment or interferes with the ability to speak or breathe.

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