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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7202
Experience:  Significant experience in all areas of employment law.
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I just spoke with my HR person about why they feel the need

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I just spoke with my HR person about why they feel the need to place me on FMLA leave, with out pay, even though I asked them to look into my accommodation request due to my Asthma. They seem to think I am a big risk to be at work, and therefore feel I should not be at work, due to my doctors note. I am telling them that I can go to work, just need help in being accommodated with perfumes at work. What should I do? It appears I am forced into placing a claim for FMLA that I cannot work. Help!
Submitted: 12 months ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 12 months ago.
Hello again and thank you so much for your question.

This is a very unfortunate situation with no immediate solution that is likely to address the current stalemate between you and your emplyer.

What is clear to me (and what I emphasized in my answer to your last question) is that FMLA leave is not going to address the problem, since it is your work environment that is triggering the health problem. So long as your work environment remains the same, your "health condition" at work is not going to improve.

This is an issue about disability accommodation and it can only be resolved by your employer agreeing to rid your workplace of perfume scents (or otherwise accommodating you to so that such scents do not trigger asthma attacks). If they refuse to provide accommodations that allow you to perform the essential functions of your job and you cannot go back to work with the environment unchanged, your only recourse is to file a complaint with the Department of Fair Employment & Housing or a lawsuit in civil court, as I noted to you previously.

Through such channels, you can obtain financial compensation for your lost income if you are able to prove that the accommodations you were requesting were "reasonable" (don't impose "undue hardship"). This is your only recourse if your employer refuses to provide accommodations. FMLA leave is not going to help you, as it is unpaid and as soon as it expires, your employer can let you go.

Perhaps a letter to your employer advising that you will be left with no option but to take legal action would be a good next step. If you can get an attorney to draft the letter (most will do this sort of work for a flat fee less than $400), that would be preferable.

As always, please let me know if I can provide you with any further assistance. I am truly sorry to hear about this predicament and am an athsma sufferer myself, so I have a sense what you are going through.
Customer: replied 12 months ago.

I was afraid of this, that I would have to resort to legal battle.


 


Will I be able to file unemployment, once they let me go?

Expert:  Patrick, Esq. replied 12 months ago.
In general, an individual will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (this is rarely an issue unless you have only been employed for a few days), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

You would certainly be unemployed due to "no fault of your own." Provided you can prove to the EDD's satisfaction that you are "physically able" to accept work (as a worst case scenario, you'd just need to get a doctor's note saying your athsma does not prohibit you from working provided you are kept away from strong perfumes and colognes), there should be absolutely no impediment to your claim for benefits.

Please let me know if I can be of any further assistance to you.
Customer: replied 12 months ago.

I was thinking of going back to my doctor and having him re-write the note to state this. My HR person wants more details, like what type of scents, what type of colognes, what type of products I am allergic too. But all I can do is tell them that most all products with perfumes set off my allergies. And the word ALL is what is bothering them.


 


If ask my doctor again to re-write the note, would that create a problem for me.


 


They want to know that I am not a risk at work, and that if I have an allergic reaction, it won't sent me to the hospital because of something they didn't do.

Expert:  Patrick, Esq. replied 12 months ago.
I think that a more specific letter from your doctor would be beneficial because it sounds like your employer is overwhelmed by the pragmatics of complying with your request for accommodations. The more specific you can be with regard to what you need to be kept away from the more likely it is they will be able to make arrangements that address your health concern in a satisfactory manner.

At the very least, a letter from your doctor indicating that you are able to work but for exposure to XYZ scents will be useful in the event you need to apply for unemployment benefits. Hopefully that does not even become necessary.

I hope this clarifies things.
Patrick, Esq., Lawyer
Satisfied Customers: 7202
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Customer: replied 12 months ago.

Yes it does help clarify things.


 


Wow, never thought it would be this difficult. Now I know what people with other disabilities are faced with.


 


Thanks again. Have a good night.

Expert:  Patrick, Esq. replied 12 months ago.
You are very welcome--I am glad I could be of assistance. If you do not have any further questions for the time being, please don't forget to provide a positive rating of my service so that I may receive credit for my answers.

Have a pleasant evening, notwithstanding the present circumstances.

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