Employment Law Questions? Ask an Employment Lawyer.
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First, let me say that I am terribly sorry to hear that you are in this situation. The ADA requires that an employer provide an employee with a "reasonable accomodation" in order for that employee to do the "essential functions of their job" in a manner that does not constitute an "undue hardship" for the employer
Do you believe that there is a reasonable accommodation that exists in which you could do the material functions of your job?
It is illegal for your company to discriminate against you because of a disability. If they are trying to counsel you on both attendance and work quality, then you must provide them something in writing which states that you are requested a reasonable accommodation due to your disability. You need to do this before the counseling session occurs. Then, once you have done this, you would have an additional claim for retaliation if any adverse employment action occurred against you. In regards XXXXX XXXXX granting you a reasonable accommodation, your employer is required to "enter into the interactive discussion" with you concerning what would be and what would not be a reasonable accommodation concerning your job.
You must be able to do the essential functions of your job with accommodation. If you can do this, then if your employer decides to fire you, you would be able to sue them for wrongful termination. You can either file a claim directly with the EEOC here:
Or you would hire an employment attorney in your area. If you decide to hire an attorney a great resource is www.Martindale.com. This is a nationwide directory that is useful in finding highly qualified legal specialists in various fields of law. The lawyers in Martindale are not selected because they paid to be included, but rather because they have been rated by other attorneys as qualified experts in their field. Consider consulting with two or three different attorneys willing to take your case prior to selecting the one you feel most comfortable with.
In a case like this, an attorney would take your case on contingency, which means that you would owe nothing out of pocket.
If, however, you cannot find a doctor willing to state that you could do the essential functions of your job, with accommodation, whether or not your employer agrees to this accommodation, then your employer would be legally allowed to let you go.
If the condition was temporary in some way, you could also request up to 12 weeks of unpaid leave under the FMLA wherein you could be away from work but still keep your job. Your employer would be required to maintain any health coverage benefits you currently have.
In regards XXXXX XXXXX disability, you would need a doctor to certify that you are disabled and cannot do your regular or customary job duties. To receive them, you must be unable to do your regular or customary work for at least eight consecutive days.
During this period, you must be under the care and treatment of a licensed doctor and you must remain under care and treatment to continue receiving benefits.
If your doctor is willing to certify your disability, then you would be able to receive benefits.
The types of conditions you mention could be enough to constitute disability, but it would depend on the severity of the symptoms, and the diagnosis of the doctor.
Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further. If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.
Have a wonderful rest of your day.
Thank you kindly for replying so quickly. I appreciate the detailed information you provided. Your guidance was above and beyond my expectation.
YOU are AWESOME!
Hello! I need your expertise again please. I requested work accommodations under ADA. My employer declined accommodations of reducing to a 33 hour work week and transitioning into a different job that would not have as high a level of stress as the job I have now. The first request was declined based on "business needs". Transition to another job was denied because I have not completed a year of service and now am also not eligible to apply for other jobs because I am on disciplinary action for attendance and performance/quality. Unfortunately, so far neither of my physicians have agreed to the need for me to have been out of work since 7/5/13. The discussion of accommodations was by phone. When I requested my manager & HR rep verify my understanding of what had been said in writing, they have not replied after 2 requests. The same is true of being provided with my job description - 2 requests and still no job description.
Would it be in my best interest to resign due to my inability to do the job because of subjective disabilities of being physically and emotionally unable to work a 40 hour week and meet performance/quality guidelines or be fired for missing almost 30 days without approval of either MD, excessive absenteeism and performance?
Thank you kindly for your continued consideration.
Once again, many thanks for your guidance.
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