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Legalease
Legalease, Lawyer
Category: Employment Law
Satisfied Customers: 16288
Experience:  13 years experience in employment law, unions, contracts, workers comp law
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Im wondering if I have an EEOC case. Had long bout with pneumonia in Spring and Sum

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I'm wondering if I have an EEOC case. Had long bout with pneumonia in Spring and Summer this year. Tried coming back to work, first four hour day, then six...In late June, Dr. Provided note to continue working part time (4 hrs) for additional 6 weeks or 3 weeks off. Manager response "NO". I offered various ways it could work and still "NO". Much discussion, then manager states "I want you to resign and take Disability for you other problem.". I have Fibromyalgia But had told him Sjogrens when he wrote me up for being late. I told him he cant make me do that. It is EEOC discrimination against my disability and THAT was not the issue at hand. Wouldn't fire me....tried to work full time, but pneumonia was too bad. I resigned and stated that I didn't want to, that he would not work with me and my Doctor's note and was forcing me to leave and take disability. Finally, this is a NC local government with 6 employees.

Hello there.

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Regarding the time that you were out of work sick -- did you take that as regular sick days that you had accumulated or did the employer offer you Family Medical Leave Act time (FMLA is only applicable to those employers who have 50 or more employees, so your employer does not qualify under the FMLA laws to have to offer mandatory FMLA leave act time -- but many employers under 50 employees, especially state and local governments, will offer the FMLA anyway). So, was this leave for the pneumonia classified as FMLA time with the employer ? If yes, were you out of work sick for any period of time in the year preceding the sick leave for the pneumonia ??

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MARY

Customer: replied 3 years ago.
I used normal sick leave and then leave without pay. They do offer a medical leave of absence but I was denied it. I was hospitalized the last week of April. Two weeks at home, one week 4hrs, then benched by doctor for one week, though I worked some from home. Then I worked another couple of weeks of 4-6 hour days. Body was not able to recouperate given the demands of the job.

No I've never had pneumonia. I was out with a virus on occasion like normal people. I was late in mornings and had to explain that I had "Sjogrens" and it sometimes take a long time to get out of the bed. I told him Sjogrens because I knew he would have to research every nit picky thing on it. He also made me tell my co-workers to explain my tardiness issues.

When I asked for an ADA Plan that would allow for flexible hours, he clammed up. Next thing I know, I'm told to leave and take disability. The town does not have a disability insurance by the way. He took it upon himself to call the NC League of Municipalities to see how to do the process thru the local government retirement system.

Hello again Carol -

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I do think you have an EEOC claim here for their failure to accomodate you for the illnesses that you have told them about and requested ADA accomodations for. However, an employer does not have to let you work on a permanent part time basis under an ADA claim / case -- because such a drastic accomodation could disrupt the work/office processes and ability to get the job done (or so the employer will claim and because the number of employees is so small the employer will be able to justify their position). While an employer is required to make accomodations under the ADA, the accomodations are generally temporary or minor in nature -- such as if a cashier who normally stands must have a chair to sit down on during her shift. In your case, it is not unreasonable to ask for a temporary accomodation for your long term illness (you will now have to be truthful regarding what the illnesses are and how long you expect the accomodation to last -- and it will be helpful to you if the doctor connects the pneumonia to the Fibromyalgia or at least the slow recovery to the fibromyalgia because the doctor wanted you to work part time for a few weeks due to the pneumonia and under the circumstances where it was the pneumonia that prompted him to ask you to leave your employment (he technically does not know about the fibromyalgia), you should pull it all together with both illnesses in the same claim to the EEOC. If the EEOC investigates and you win the case, you will be offered back pay and your job back or a severance (if you go back to work for them the EEOC will assist in setting up ADA work restrictions for you). You have to make the complaint to the EEOC within months of your leaving their employment. You can get the complaint forms right from their website if you do a search using EEOC and your state.

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MARY

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