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Tina
Tina, Lawyer
Category: Employment Law
Satisfied Customers: 32151
Experience:  JD, BBA, recognized by ABA for excellence.
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I recently was asked to take a new position at my job, after

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I recently was asked to take a new position at my job, after taking the new position my diabetes became out of control and I asked to be reassigned to my old position, the job has not been filed and I did the job for 15 years so I know I can control my diabetes and preform the job. I have since sent a email and a write request to be reassigned and still the company will not let me go back to my old position. the new job is making me not be able to control my blood sugar and was causing me to have a case of diabetic retinopathy. I have explained this to the hr manager and they are still telling me I have to return to the new job . I need to know what my right are and I feel like they are forcing me to put my vision and health at risk. I return to work on Tuesday and need advice soon
Submitted: 1 year ago.
Category: Employment Law
Expert:  Tina replied 1 year ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. I am sorry to hear of your difficult situation. Before I can give you an accurate answer to your question, please provide the following additional information:

Is there an accommodation the employer can provide you which would permit you to perform the new job while maintain control over your condition? Do you have any reason to believe the employer is discriminating against you because of your disability?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 1 year ago.

I believe the reassignment to my old position is the best accommodation. I have tried seeing a specialist and she even suggested returning to my old job. the new job is too unpredictable in terms of work load so it make it very hard to control my diabetes, I did ask my employer if they has suggestion on accommodation and they have not made any. I do believe the employer is discriminating against me , at this point what else could I think??

Expert:  Tina replied 1 year ago.
Hello again, Nick, and thank you for providing this additional information.

The federal American's with Disabilities Act (ADA) does typically prohibit employers from discriminating against employees because of their disability. This statute also requires that employers provide a reasonable accommodation which is not an undue hardship and which permits the employee to perform the tasks of their job.

However, it does not typically require that an employer reassign an employee due to their disability I'm afraid, but only accommodate them in the position they have been assigned to.

If you can produce evidence though that, if you were not disabled, the employer would have reassigned you to your previous position or some other job which you could satisfactorily perform, that would typically provide a basis to pursue a charge of employment discrimination.

If that is the case, then it would be best to retain a local employment law attorney to represent you in pursuing that claim, seeking either damages or reassignment. The first step would normally involve filing a complaint internally with the employer's HR department and if the situation is not promptly resolved, a charge of discrimination can be filed with the EEOC.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 1 year ago.

from what I have read type 1 diabetes is a disability and reassignment to a vacant job is a reasonable accommodation. my old job is currently a vacant position so why would they be unwilling to reassign me to the open position

Expert:  Tina replied 1 year ago.
Hello again, Nick.

The EEOC and a a district court has held that reassignment to a vacant position is a reasonable accommodation, even though the language of the statute requires only that the employer provide an accommodation that would permit an employee to perform the tasks of their current job, so there is some room to argue that the reassignment would be a reasonable accommodation, even though that is not expressly required under the ADA.

If you wish to make that argument, I would retain a local employment law attorney to represent you since the employer appears to be resisting this move.

Here is a link to a recent case where a federal court did hold that reassignment to a vacant position was a reasonable accommodation, which would support your argument in this case:

http://www.insidecounsel.com/2012/09/17/labor-ada-mandates-reassignment-of-disabled-worker

Customer: replied 1 year ago.

I was also wondering if I return to work and the effects of the new job make my diabetes uncontrolled again and my diabetic retinopathy starts to progress would they be held accountable for forcing me into a position that could harm me

Expert:  Tina replied 1 year ago.
Yes, under worker's comp laws, they could be liable to you if the working conditions aggravate your pre-existing condition.

Customer: replied 1 year ago.

what other step can I take to make sure my right are not violated

Expert:  Tina replied 1 year ago.
Filing a complaint with the HR department or a charge with the EEOC if the matter is not promptly resolved internally, along with retaining a local employment law attorney to represent you would typically be the best course of action to protect your legal rights under these circumstances.

Tina, Lawyer
Category: Employment Law
Satisfied Customers: 32151
Experience: JD, BBA, recognized by ABA for excellence.
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