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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 5299
Experience:  Extensive experience representing employees and management
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I have been placed on non-punitive administration leave after

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I have been placed on non-punitive administration leave after requesting reasonable accommodation. Just over 2 years ago I had a stroke while on temporary duty at another military installation. I have been back to work for almost 2 years now. First I was in a wheelchair, then I used a walker, then a cane and now walk aid free. For my past 2 annual appraisals I scored very high and received a rating of highly competent. Recently, my boss asked me to submit a request for accommodation. I have now been placed on paid administrative leave because I can "no longer perform the core functions of my job" although I have been doing it successfully for the last two years. I asked for occasional breaks of 10 to 15 minutes to recover my balance and strength. I have been told that since I require breaks, I am not performing my core functions during that time and that is why I am on administrative leave. They also are questioning my right to hold a CA driver license although I have been told by my physician that I have no restrictions on my driving. I don't want to cause problems, but I am worried that I should hire a lawyer to make sure I am protected. I have been told by HR that if I do, all conversations with them will cease? Any advice would be appreciated.
Hello and welcome to JustAnswer.

I'm very sorry to hear about your situation and hope I can help.

Unfortunately, I cannot give you any 'advice' regarding your situation as that constitutes legal representation and is against the rules of the site.

However, I would be happy to answer any questions you have regarding your situation and am free to give you my opinion regarding them.

You said that your boss asked you to put in a request for a reasonable accommodation? Are these 10 to 15 minute occasional breaks something you need (if so how many) or did you just request the accommodation since your boss asked you to make one?

Also, is it necessary for you to cease work during the breaks?
Customer: replied 3 years ago.


I have balance issues as my stroke was in my cerebellum. I take occasional breaks of 10 to 15 minutes once or twice a day during my 10 hour shift. I do cease work and sit with my head down to recover my balance.

Hello Ian,

So, the maximum number of 10 to 15 minute breaks you would need to take on a daily basis would just be 2 (approximately one in the morning and one in the evening)? Have you been doing this for the past two years or just recently?
Customer: replied 3 years ago.

I have been doing it for the past two years. Recently my boss was given what he considers a poor evaluation, called me in his office and told me that all the examples of why were because of me. I believe that he began this process to retaliate.

Hello Ian,

Again, my goal is to provide you with excellent service today.

I see, thank you for the additional information. I assume that you are a salaried employee, but please let me know if that is not the case.

I do not see how taking 10 to 15 minute breaks (that you actually have been taking over the past 2 years) to occasionally regain your balance and strength would prevent you from performing the core functions of the job.

If you are an hourly employee, such breaks would likely be built into your schedule anyway, since you are entitled to two rest breaks during your shift. If you are salaried, you only need to take a brief break from work and can get back to your work after the break. Since you have been taking these breaks and receiving great evaluations, it is highly unlikely that such breaks can be successfully argued to make you unable to perform the essential functions of the job.

Additionally, if you believe that your boss is retaliating against you on the basis of your disability, you have a claim against him or her for retaliation in violation of the Fair Employment and Housing Act and Americans with Disabilities Act.

You can file a discrimination and retaliation complaint using the information available online here:

http://www.dfeh.ca.gov/Complaints_ComplaintProcess.htm

It is not necessary to hire an attorney at this stage, but if you are considering suit due to discrimination on the basis of disability (as I think you should), you would want to hire an attorney at that stage if not before. However, it is illegal for HR to refuse to engage in the reasonable accommodation discussion with you because you have hired an attorney.

I am not sure what the essential duties of your job entail also. If it is just office work, then it definitely doesn't seem that your accommodation would interfere with your essential duties. However, if it involves you traveling and requires that you be fully aware and balanced at instillation sites (for liability and safety reasons) that could be what your employer is trying to argue, even though your physician has cleared you of any driving restrictions.

Likewise, if you were to lose your balance (experience vertigo) while driving that could endanger the lives of other drivers, which is likely why your employer is questioning your right to hold a driver's license.

Finally, in addition to the above, I would consider going back to a physician to try to get a diagnosis that such breaks are not necessary (if in fact they aren't). If they are currently, you may want to inquire about any medication or other treatment that may improve your condition as well.

I hope the above information is helpful.

Since my goal is to provide you with the best service today, please don't hesitate to ask any clarifying question or request any additional information you need.

If not, please remember to rate my answer positively so I get credit for my work!

Thanks and best of luck!
Joseph and other California Employment Law Specialists are ready to help you
Hello Ian,

I hope all is well! Please consider me if you have any additional legal questions in the future. You can contact me by placing "to Joseph" at the beginning of your question or requesting me directly in California Employment Law.

Thanks and best of luck!

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