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TexLaw
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Category: Employment Law
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Experience:  Contracts, Wrongful termination and discrimination
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I have cancer and have been receiving chemo. My school districts

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I have cancer and have been receiving chemo. My school district's Board of Education approved the FMLA last year. Accomodations were specifically listed by the doctor, and these were not followed. I was out quite a bit, but this was one of the accomodations they approved. I was written up for excessive absences. My caseload of students was huge compared to the other speech therapists. Direct access to a bathroom was also not arranged for me. I have another FMLA this year, but have been out completely because of chemo and various other treatments/appts. They never told me the FMLA was approved, and only gave me a few days notice to tell me it was almost up. It is my understanding that they were supposed to provide me timely notice of both. My question is- can I pursue action against them based on discrimination and failure to follow the FMLA (specifically last year)? I don't know the time period for when I can/can't approve this. They have frozen my emails and won't release them. One email sent to me from my principal said he didn't want to hear about my health issues anymore. They also have altered a Board of Education document (monthly minutes from one meeting a few years back). They had my name posted as wanting me to go to a doctor to see if I was physically/mentally capable of teaching. They have since deleted the entire paragraph. I feel like they violated my HIPAA rights.
Thank you!
Melissa
Hi,

Thank you for your question and I'm very sorry to hear about your situation. Dealing with fighting cancer is enough without having to deal with an uncaring employer too!

Cancer is a disability under the ADA when it or its side effects substantially limit(s) one or more of a person's major life activities.

In regard to your request for FMLA, you do not have a private cause of action (you can't sue) for their violation. Rather, you will need to report the violation to US Department of Labor Wage and Hour Division for enforcement. See: http://www.dol.gov/whd/

In regard to the failure of your employer to provide you with the reasonable accommodations you have requested, you may file an EEOC claim for retaliation and discrimination. You should not have been written up for absences based on your disability related illness. You file an EEOC claim at the local EEOC office. You'll need to call them to make an appointment.

Finally, regarding the HIPAA issue. HIPAA prohibits the unauthorized disclosure of private medical information. The school asking you to go see a doctor to assess your continued teaching abilities is probably not going to qualify as a HIPAA violation because it is not actual medical information that is being posted. That's not to say that the administration's posting was not rude and potentially defamatory, it definitely was. Nevertheless, there is no claim you could currently make on this posted statement at this time.

Please let me know if there is anything else I can do for you or if you have any other questions. Please also remember to rate my answer positively so that I am compensated by the website for my work. I hope this has helped you.

Best Regards,
ZDN
Customer: replied 4 years ago.


What happens if I successfully make a claim at the EEOC office? Can I receive any compensation, and if not, what can happen to the school district if the claim in founded. Also, do they have a right to withold my emails from me and change/delete information from documents?


 


Thanks!


Melissa

Unless you have actually lost any money as a result of the schools actions, then the EEOC claim will only force the school to make reasonable accommodations for you. They may have to pay a penalty, but it would be to the EEOC, not you.

If your claim was not successful, the school cannot take any action against you because this would be retaliation.

They do not have to provide you with the records you are talking about until there is a legal claim against them. However, if they change the records or falsify the information, this would be evidence tampering and could be punished as a crime.
Customer: replied 4 years ago.

I definitely have proof that they changed the BOE minutes- I have before and after copies. Is this something I also report to the EEOC? Sorry so many questions- just trying to get a handle on this. I wish I could definitely get that one email- if definitely shows harrassment.

Sorry for the delay. Absolutely you can report that to the EEOC as part of the evidence of your retaliation and discrimination claim. You should also consider reporting it to the state attorney general's office as fraudulently changing official documents is against state law.
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