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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19768
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I am HIV Positive. Upon being interviewed position I

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I am HIV Positive. Upon being interviewed for my position I noted this to the District Manager. She proceeded to ask me if I get sick often, or will, she stressed how important that was because she needed someone who didn't. I said no (you can't predict if you get sick or not in the future).
I head to work after my weekend, my District Manager is there, I felt something was up. She said she had to demote me because of my time and attendance. I told her well those absences where approved by my superior and were a direct correlation because of my disability, she ignored that and said it was because of my absences, because I was sick? She said she had to worry about the future with me and if i were to get sick again. Saying she asked me from day 1, if I got sick. She then said to me I should have known I felt you were uncapable from the moment you asked about the schedule and hours.
Was this correct on her behalf? To first demote me based on an illness and the belittle me by saying such statements.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Marsha411JD replied 1 year ago.
Hello,Thank you for the information and your question. Although it is permissible in some circumstances to terminate or discipline an employee for absenteeism, even if they have a disability, unless they qualify for FMLA, an employer may not lawfully terminate an employee simply because they anticipate issues or because they have a disability. Your employer made all sorts of mistakes in your case that will likely make them liable for violation of the ADA and NYS disability laws. The first mistake was to ask you if you got sick often. An employer can only ask if the employee will be able to do their job. Also, her statements about you being sick and worrying about the future, likewise violate the law. If you have not filed a formal complaint with your employer's HR or EO office, you should do so. You would want to file no only for disability discrimination per se based on her statements and action, but also under the reasonable accommodation rule under the ADA. The reason for the latter is that there can be an exception for attendance if the employer can provide a reasonable accommodation by way of more time off without causing and undue hardship on the employer. That means that the employer must make that determination, which it is pretty clear she did not. If your HR Department does not resolve this in a manner you think is reasonable then, at that point, you can file complaints for disability discrimination with the State and the EEOC and might also want to consult with a local employment law attorney who might advise you that filing suit instead of waiting for action from the agencies I mentioned might be advisable. You would still have to file a complaint with one of the agencies, but just not wait for them to investigate. Please let me know if you need any clarification.
Expert:  Marsha411JD replied 1 year ago.
Hello again,
I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 27th. For some unknown reason, the Experts are not always getting replies or ratings (in the pop up box for this question, which is how we get credit (paid) for our work) that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.
In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/
Thank you.

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