Legal Protections for Ill or Injured Musicians: the Basics of the ADA and FMLA

August 1, 2014

by Rochelle G. Skolnick, AFM Symphonic Services Division Counsel, Schuchat, Cook & Werner

The work of a professional symphony musician is extraordinarily demanding—physically, mentally, and emotionally. Evolution has imperfectly prepared the human body for the task of mastering Shostakovich and Strauss, the violin or the oboe. Even the most physically aware and careful musicians may suffer a repetitive strain injury or a bout of focal dystonia. Layered over the physical challenges is the stress that comes with being expected to perform, every night, at the very highest levels—expectations that originate, not just from the podium, but also from within. Our AFM collective bargaining agreements (CBAs) have evolved to ameliorate these stresses through fundamental protections like reasonable rehearsal and performance lengths with regular breaks; weekly service limits; string and wind rotation provisions; and job security assurances. Despite these contractual protections, musicians sometimes get hurt. 

Musicians also are not exempt from the effects of aging or immune to disease. Musicians who cobble together a living performing in multiple regional orchestras often spend hours each week commuting, an activity that takes a special toll on the body. And accidents happen, at home, at play, at work, and on the way there. 

In sum, there is a distinct possibility that, at some point in a career, a symphony musician may find him or herself either completely out of commission for some period of time, or in need of accommodations to perform at the very high level required. Musicians who arrive at such a juncture need to understand their legal rights—both those provided by the CBA and those available pursuant to federal and state statutes. And while a union arguably has no legal duty to advocate for a musician beyond the scope of enforcing that musician’s rights pursuant to the CBA, a well-informed local union and orchestra committee can be an invaluable resource to a vulnerable musician.

Contractual leave provisions and negotiated short- or long-term disability insurance may be sufficient to provide for the needs of some. Where workplace injuries are involved, state workers’ compensation laws may offer some protection. Social security disability may be an option in extreme cases. This article focuses on the basics of two federal statutes: the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). 

The FMLA guarantees eligible employees of covered employers up to 12 weeks per year of unpaid leave to attend to the employee’s own serious health condition, that of a family member, or to care for a newborn or newly adopted child. A serious health condition is typically one that requires an absence from work of more than three days, but may also include chronic conditions that require shorter, intermittent absences. Covered employers are those with 50 or more full- or part-time employees working within a 75-mile radius, for at least 20 weeks during the preceding year. Because the methods of counting employees for the purpose of deciding whether an employer is covered by the FMLA are very liberal, most Regional Orchestra Players Association (ROPA) employers and nearly all International Conference of Symphony and Opera Musicians (ICSOM) employers are covered by FMLA. 

But not all employees of covered employers are eligible for FMLA leave. An eligible employee is one who has been employed for at least 12 months within the seven years preceding the leave and worked at least 1,250 hours in the year preceding the leave. That 1,250-hour threshold limits symphony musicians’ eligibility for FMLA leave, although staff members of the same employers who work a 9-to-5 schedule year round will easily qualify. Some employers offer FMLA leave even to musicians who do not cross the 1,250-hour threshold, sometimes establishing a binding practice. Where musicians would not be otherwise eligible for leave under the FMLA, the union may bargain “FMLA-like” CBA leave provisions. Employers whose staff members are FMLA-eligible should have an understanding of both the mechanics of the law’s application and its value to employees. It would be unconscionable for such an employer to deny the musicians, who are at the heart and soul of its operation, the same fundamental protections afforded automatically to its other valuable employees.

The ADA provides broader coverage than the FMLA and affords workers a wider array of protections and a more comprehensive toolbox to mitigate the effects of disability. Covered employers are those with 15 or more employees on each working day of at least 20 weeks of either the current or preceding year. Virtually every ROPA and ICSOM employer will meet this standard. A musician with a disability who, with or without reasonable accommodation, can perform the essential functions (i.e., fundamental duties) of his or her job with such an employer is protected by the ADA. 

Disability is defined as a physical or mental impairment that substantially limits one or more major life activities. Disability protection also exists where there is a record of such impairment in the past or where the employer simply perceives such impairment. “Major life activities” include a wide array of basic activities that most in the general population can do with little or no difficulty (e.g., seeing, hearing, breathing, thinking, eating). A “substantial limitation” is measured in comparison with the general population and need not render the individual wholly or permanently unable to perform a major life activity.

Accommodations pursuant to the ADA can include time off (sometimes beyond that available under FMLA or negotiated leave provisions) to receive treatment or undertake rehabilitation that will allow a return to work. A reasonable accommodation could also include temporary or permanent reassignment to a vacant full- or part-time position or job restructuring. The provision of assistive technology or modified equipment may constitute a reasonable accommodation. In the symphony orchestra that may be something as simple as providing a different chair, extra stand lights, or large-print sheet music. 

A disabled employee (or someone acting on his or her behalf) must request an accommodation, but need not explicitly invoke the ADA. Once such a request is made, the employer is required to engage in an informal interactive process to determine an effective accommodation. An employer may reject a proposed accommodation where it poses an undue hardship. An economic cost to the employer does not automatically render the accommodation unreasonable. However, where a proposed accommodation would violate the provisions of the CBA, it may create an undue hardship. A union assisting a musician in obtaining a reasonable accommodation should be careful not to trample on the rights of others working under the CBA.

In practical application, both the FMLA and the ADA are likely to raise issues that are beyond the scope of this article. The US Department of Labor (www.dol.gov) and the Equal Employment Opportunity Commission (www.eeoc.gov) provide excellent guidance on these important laws. Musicians and their representatives should utilize these and other resources to arm themselves with a basic understanding of the laws so they are prepared when a musician in crisis asks for help. Local unions and orchestra committees should not hesitate to contact SSD for support as they assist musicians who suffer from illness or injury. And in complex or contentious situations, there is no substitute for the advice of experienced counsel.

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