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  1. #1

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    New HR Manager - attendance/medical history

    Jurisdiction / State: California

    Hi,

    I've been working at the same company for about the past 14 years. When I started with the company it was known that I suffer from severe migraines and also have siezures, due to a brain ingury I suffered when I was 18. I was on serveral different medications for it, but had to stop taking them due to how they affected my ability to function. My company allows for 2 weeks of sick time per year, plus vacation time. I typically use up all of my sick time (not always for migraines) each year and if needed have always been allowed to use vacation time in place of sick time. This hasn't just applied to me, but also applies to other people in the office. We have gone through several Human Resourse Managers and I've never had this be an issue with any of them. It is documented in my file that I was out on disability for over 2 months back in 2006 due to kidney failure that resulted after having 3 grand mal seizures. I try my best not to let this interfear with my work and am very lucky that up until now have had an HR Manager that has worked with me. I have never been written up for my attendance. We recentely got a new HR Manager that has threatened me with being fired over using my sick time. When I explained the situation to her she baically told me my medical history doesn't matter and that she knows what the laws are. Since we discussed this, more things have happened that make me feel as if I'm being discriminated agains. I have always been taught by every company that I've worked for to be at my desk ready to work by the time my work day is due to start. I typcially come in about 10 minuted before my start time to make sure I'm ready to go. I know that I don't get paid for being at work 10 minutes early and none of our past HR Managers had any problems with me doing this. I was just informed by the HR Manager today that I am breaking the law by doing this and she made me feel as if my job was threatened by doing this. I told her that I would no longer do it, which I wont, and now am just waiting for her to find something else to threaten to fire me over. Can our new HR manager really fire me for coming in early and for a medical problem that is well documented in my file?

  2. #2
    Super Moderator Samaritan & Scholar

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    Yes, your HR Manager can really fire you for coming to work early. And she's right - it is a violation of the law for you to work without being paid, and it is the company, not you, that would have to pay the fines. Now, she may be drawing the line a little tighter than I would (particularly since I do the same thing you do), but she is techically correct.

    As for the medical issue, we need more information, but to start with, how many employees within 75 miles of your location? Depending on the answer, I will have more questions since there's more than one law that can be invoked, but to know which one makes more sense (or if you can/should use both) I need to start with that one.

  3. #3

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    Thanks for taking the time to help me with this. We have about 40 employees that work in the building and within 75 miles of the building.

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    Super Moderator Samaritan & Scholar

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    Okay, so FMLA (which would provide you with protected medical leave) does not apply since you have less than 50 employees within 75 miles. However, since you have more than 15 employees, the ADA does apply. What the ADA does is require the employer to make a reasonable accomodation for a qualifying disabilty. The key word is "reasonable".

    Other than being allowed to use vacation time as sick time, is there anything else that you are asking the company to allow that they would not normally do? This is simply for the purpose of helping you determine how, or if, you would request the accomodation.

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    No, I'm not asking them for anything other than being able to use my vacation time as sick time.

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    Okay, that doesn't sound unreasonable to me. But I'm not the one who has to do the scheduling, so I can't offer carved in stone guarantees.

    One more question, and then we'll start trying to pull this together. Approximately how much time are we talking about, and how often are you needing to take time off with no notice?

    Again, this is simply for how we put the plan together.

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    Sorry, for the late reply. The time missed varies. I can go months without missing any time and then sometimes miss around 2-3 times (sometimes more) in a month. I have migrianes every day. I've gotten use to them and deal with it for the most part, but when they get really bad there's not much I can do. The HR Manager has made it very clear to me that I need to be here no matter what. I have always tried to do that, but don't always feel it's safe for me to be driving. The last time I came into work with a severe migraine I ended up leaving early because I could barely see (everything turns white and I can't see) and I was very lucky that I didn't get into an accident driving home.

  8. #8
    Super Moderator Samaritan & Scholar

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    Okay. What I would do is contact your doctor first, and just clue him in that you are going to be requesting an accomodation under the ADA. Then, you go to HR and you say to them, using these words, "I have a medical condition which I believe qualifies me as disabled, and I am requesting an accomodation under the Americans with Disabilities Act".

    Under the law, once you have made that request they are obligated by law to enter into an interactive process with you to determine whether you actually are disabled under the law (this is where your doctor comes in) and to make whatever reasonable accomodation will allow you to fulfill the essential functions of your condition.

    A couple of important points to remember (don't take this personally - this is a very misunderstood law and I suspect your HR manager doesn't understand it very well either, so I want you to know what you are and are not entitled to by law):

    1.) The employer is not obligated to give you the accomodation you ask for or even the one that your doctor recommends; only one that works
    2.) The ADA is designed to keep you working. From what you've said I think you understand this, but just so it's clear - a short leave can be a reasonable accomodation, but the ADA does not guarantee you time off. As I said above, I don't think your suggested accomodation is unreasonable, but I don't work for your employer and I don't have to do the scheduling. They may have another idea for what might work, and you can't demand that they do it your way. If their way doesn't work, you can always go back again.
    3.) If there TRULY is no reasonable, and I underline reasonable, accomodation that can be made, then they can legitimately fire you. But the burden of proof would be on them to show that there is NO reasonable accomodation that could be provided.

    If they refuse to accomodate, if they claim there is no reasonable accomodation without supportable evidence, or if they take any negative action against you because you requested an accomodation, THEN you have solid grounds to take legal action. You will need to file a complaint with the EEOC to get started. You may or may not want to talk to an employment law attorney first.

  9. #9

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    Thank you very much for the information. I now have a very clear understanding of what I need to do and appreciate you taking the time to help me.


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