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ADA accomodations and coworker harassment

Discussion in 'Medical Leave & Disability' started by sioraf, Mar 4, 2013.

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  1. sioraf

    sioraf Law Topic Starter New Member

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    I will start by saying - I have fibromyalgia and advanced osteoarthritis in my spine. 3 months ago I began having some severe back pain to the point where I could no longer put my pants, socks or shoes on by myself because of pain when bending. I work in a hospital, and am able to do all of the portions of my job, with the exception of one that requires me to bend over the beds on the floors. I am able to do the task if I have a stool to sit on, but there are no stools on the floors. I am able to do the task anywhere else in the hospital as there are stools. So, basically, I told them that. Because of that and the fact that I have had to leave for doctors appointments because of the condition (which I always got clearance for before I took time to do) many of my coworkers started pressuring me, saying that I couldn't be reliable and that it was impacting everyone else and that I should step down from my part time position to a per diem position. I was told by my boss that I could not take any more time for appointments because I had no more earned time, but my schedule was changing on almost a daily basis, so when I tried to schedule appointments around work (when possible - some of the testing I had to have, they just tell you when to show up and if you don't, you don't get seen for another month) I would schedule one and then suddenly it would be imperative that I work at that time. One of my coworkers went so far as to say in front of me that she would quit if I got any special accommodations. Because of all this, I reluctantly changed my status to per diem.

    So at this point, my supervisor told me she had set up for someone else to do that task so that I could fill in on the weekends when none of the regular employees want to work. Apparently she didn't actually do this, so when I came to work Saturday, I was asked by the only other coworker that was there for the entire weekend to do the task. I said I couldn't because I would hurt myself. He said I had to, I told him I had doctors notes saying I couldn't, and he told me that it wouldn't hurt me and to just go do it. I did try to go do the task, and ended up exacerbating the nerve pain in my back. I told him that my supervisor had told me she had set up the accommodation - he said he knew nothing about it. When I came in the next day, there was a stack of 3 patients for whom I was supposed to do the task with a note that said "This is your pile, go do it, no arguments!" and my co-worker was not around. I photocopied the note, and wrote a note of my own saying I was happy to do the task anywhere else, or to do any other tasks required, but I did not want to hurt myself and also photocopied that. My co-worker came in as I was leaving the note and I explained to him that I couldn't do it - he blew up at me and told me I had to. When I said I wouldn't, he said "Well, then I will leave, and you'll be here by yourself, what will you do then??" I told him he should do what he needed to, and I would do what I needed to. He continued to berate me, but called in the employee that my supervisor had told me she had set up to come do the task and she came in. She was also angry with me and said she wasn't supposed to come in.

    At this point, I have 2 coworkers threatening to quit if I get accommodations to do my job, and 2 being actively rude to me at work because I am asking for accommodations at all. Would this mean that my employer could claim that there would be "undue hardship" for accommodating me? Can I be fired for refusing to do a task that I thought I did not have to do? I live in NH which I know is an "at will" state and that my job can fire me for any reason or no reason, but I just don't know if this is covered under the ADA I guess. I feel like just quitting and trying to find a new job, but I live in a small area with small hospitals and I am sure that many of them have already heard about this and would not even give me an interview.
     
  2. cbg

    cbg Super Moderator

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    What kind of accomodation are you looking for?
     
  3. army judge

    army judge Super Moderator

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    You're NOT disabled, in the sense of being a person protected by those covered under the ADA.

    Even if you were covered under the ADA, you don't get to decide what tasks you wish to perform.

    You've caused a very big problem for yourself.

    By pushing others, they're now pushing back.

    I don't see you using the ADA as an excuse for you to cherry pick your duties.

    Your last few sentences sum up your dilemma.

    Yes, you can be terminated without being given a reason.

    Sent from my iPad3 using Tapatalk HD
     
  4. sioraf

    sioraf Law Topic Starter New Member

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    cbg, I asked for a stool.
     
  5. sioraf

    sioraf Law Topic Starter New Member

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    I am curious why you don't feel I would be covered under ADA?
     
  6. sioraf

    sioraf Law Topic Starter New Member

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    Also, the task is not an essential function of my job and is not listed in my job description at all. It was something that I rarely ever had to do before working weekends and something I told them I couldn't do if I was going to commit to working weekends.
     
  7. Betty3

    Betty3 Super Moderator

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    Fibromyalgia and advanced osteoarthritis "can be" covered under the ADA. (Probably would be in this case.)

    You have to work (unless you have a binding employment contract to the contrary) whatever job(s) your employer tells you to & work whenever they tell you to.

    I don't think a stool is an unreasonable accommodation. You need to tell your employer your need a stool as an accommodation under the ADA - you need to ask for it & mention the ADA.
     
  8. army judge

    army judge Super Moderator

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    I don't think an employee has the legal authority to demand the employer provide them with a stool.

    I suppose, any employee could purchase a $5-10 stool and use it.



    Sent from my iPad3 using Tapatalk HD
     
  9. Betty3

    Betty3 Super Moderator

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    The employee can request using one & the employer must allow the employee to use one if doing so is a reasonable accommodation under the ADA that will work for the employee. They probably have stools already available somewhere at the hospital or the employee may have one. Even the hosp. buying one for the employee doesn't sound unreasonable to me.

    The main thing is letting the employee use one.
     
    Last edited: Mar 4, 2013
  10. cbg

    cbg Super Moderator

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    AJ is right in one sense - the employee does not get to decide what accommodation they get.

    However, if the employee asks for an accommodation and it is clear that they are invoking their rights under the ADA, the employer is obligated by law to investigate what, if any, accommodation they can make that will allow the employee to perform the essential functions of their position and which will not create an undue hardship on the employer. The burden of proof is on the employer to show undue hardship.

    OP, when you spoke to the employer, did you invoke the ADA?
     
  11. Betty3

    Betty3 Super Moderator

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    I agree that the employee doesn't get to decide what accommodation they get but if a stool is requested & is what will work for the employee, I don't see that being an unreasonable accommodation under the ADA. (or something to sit on in place of a stool at least that might work) I agree & noted that the OP needed to request an accommodation from the employer & mention the ADA.

    I can't see wanting a stool being an undue hardship on the employer. (in my opinion)
     
  12. sioraf

    sioraf Law Topic Starter New Member

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    I didn't specifically invoke ADA - I got a note from my doctor saying that I couldn't lean over beds and what my diagnosis was, and I told them that there were no stools in the rooms and that I would be able to do it if I had a stool. My supervisor told me that they would have someone else do it, and I thought that was that. Now that people are threatening to quit if I get any accommodations, however, I wonder if I can even get a stool as a reasonable accommodation as we are already incredibly short staffed and the people who are threatening to leave have much more experience than I do and are therefore more valuable. I feel like they may claim that if two people will quit because of it, than even a stool is undue hardship to them.
     
  13. Betty3

    Betty3 Super Moderator

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    Talk to your employer & tell them you are asking for a reasonable accommodation under the ADA to do your job such as a stool & see what they say. They have to prove that there is NO reasonable accommodation at all.
     
    Last edited: Mar 4, 2013
  14. army judge

    army judge Super Moderator

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    As I recollect ADA Law, only HIV/AIDS automatically qualifies for ADA protection.

    Furthermore, to be protected under the ADA, you must have a record of, or be regarded as having a substantial, as opposed to a minor, impairment.

    A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

    As far as other conditions, diseases, illnesses; they are negotiated and discussed between the employer and the employee.

    If I wanted such an accommodation, I suspect I'd open a dialogue with human resources officials at my employer's premises.

    I'd also have in hand a diagnosis and a declaration of my condition (INDICATING SUBSTANTIAL IMPAIRMENT) by a qualified physician.

    A medical condition does not mean you are disabled.

    Most medical conditions are not disabling.

    A note from a physician does not create a ruling of law.

    A medical opinion from one physician does not mean you are automatically disabled.

    For general ADA information, answers to specific technical questions, free ADA materials, or information about filing a complaint, call: 800 - 514 - 0301 (voice)




     
    Last edited: Mar 4, 2013
  15. Betty3

    Betty3 Super Moderator

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    There are many conditions that "can be" covered under the ADA including fibromyalgia & advanced osteoarthritis.

    The Americans with Disabilities Act requires that an employer provide a reasonable accommodation to those employees who are self-identified as being disabled and who need assistance to perform the essential duties of their position. The burden of proof that an effective accommodation cannot be found is on the employer, not the employee.

    As cbg & I both noted, the OP needs to tell the employer they want to invoke the ADA & request a reasonable accommodation under it. The employer must attempt to find one that is reasonable & not an undue hardship.

    ADA amendment act of 2008: MAJOR LIFE ACTIVITIES.—

    “(A) IN GENERAL.—For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, BENDING, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."
     
  16. army judge

    army judge Super Moderator

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    Bottom line, it takes effort and time.

    In fact, if an employer denies an accommodation, the claimant must then pursue an EEOC action.

    That, in itself, becomes cumbersome and often ends with a "right to sue" letter.

    This letters take months, even years to receive.

    Once such a letter is issued, it's off to federal district court.

    Have you ever pursued a civil case in federal district court?

    They take years, and yes, I've done a couple (pro bono).

    This is, of course, if the employer balks.

    In some cases, jobs get eliminated when an employer catches wind of these situations.

    But, this is America, and miracles do happen.


    Sent from my iPad3 using Tapatalk HD
     
    Last edited: Mar 5, 2013
  17. Betty3

    Betty3 Super Moderator

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    I still recommend though that the OP invoke the ADA & ask the employer for a reasonable accommodation under the ADA. (See what happens)
     
  18. sioraf

    sioraf Law Topic Starter New Member

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    just FYI, from the EEOC's website:

    I have provided them with documentation of disability from my GP, orthopedic surgeon and rheumatologist in the last 2 months and I thought they had given me a reasonable accommodation (restructuring job by reallocating marginal duties) when I asked for a stool. I will invoke the ADA in a last ditch effort to get this sorted out, but apparently you don't have to.
     
  19. cbg

    cbg Super Moderator

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    AJ, only HIV/AIDS AUTOMATICALLY qualifies for ADA protection. Many, many other conditions can qualify but they are looked at on a case by case basis.

    OP, while it is true that the law does not require that you invoke the ADA specifically, I always recommend that employees do so because then there can be no confusion about the fact that you are invoking your rights under the law. Unlike FMLA, it is the responsibility of the employee, not the employer, to make it clear that you are looking for an accomodation under the ADA. It is NOT enough to simply make the employer aware of your condition. If you specifically mention the ADA, then they cannot later claim that they didn't understand what you were requesting.
     
  20. Disabled Vet

    Disabled Vet Well-Known Member

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    I am a disabled vet with a spinal cord injury. I was also employed by a Large company. I know how ADA works and doesn't work... First of all to the OP, You should quit this job. If your really concerned about your health then finding a position that better suits your impairments would be better for you. I became injured in 1982 from a fall about 45 feet. Not once in my 17 years with this company did I ask for them to work around my condition. If I need time to recoup I would request that from my doctor to put me off work. Which was very rare maybe 5 times in 17 years. Here's what happened to me once.... I was moving a rack that weight 375 pounds, it twisted and I twisted it back. It won... The workers comp doctor put lifetime restrictions no lifting over 10 pounds, no overhead work and no bending. These restrictions put me out of work..... Now I fought these restrictions.. I had 5 yes 5 doctors that gave me full release to work until my employer allowed me to return. Now.... You really need to consider your health. If you continue on thru this stress it will INCREASE your pain from fibo for sure. They could declare your bending over the beds as a esstinal function of your job.

    Since The Americans with Disabilities Act: Your Responsibilities as an Employer was published, the Supreme Court has ruled that the determination of whether a person has an ADA "disability" must take into consideration whether the person is substantially limited in performing a major life activity when using a mitigating measure. This means that if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person will not meet the ADA's first definition of "disability." The Supreme Court's rulings were in Sutton v. United Airlines, Inc., 527 U.S. ____ (1999), and Murphy v. United Parcel Service, Inc., 527 U.S. ____ (1999).

    So.... Do you suffer doing daily life activity's? Based off what I have read from your posts you don't. Just protect your health and find employment that will allow your pain, issues to decrease. I wish you the best....
     

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