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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19777
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I am an academic nurse educator; due to increasing

Customer Question

I am an academic nurse educator; due to increasing difficulty with medical problems I need to go to a 50% position in the College of Nursing at UAMS. I have taught there for almost 11 years and have had excellent evaluations every year from students and administration. If the Dean decides that I will not be allowed to go to 50%, I will lose my teaching job. I am 69 years old and need my job and insurance. Do I have any legal recourse if she decides not to honor my contract, and terminates me for not being able to work full time?
Submitted: 4 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 4 months ago.

Hello,

Thank you for the information and your question, however, I will need some additional information from you in order to assist you properly. When you ask about whether they have to owner your "contract" is that a term contract and does it allow for part time work at your discretion? Are there other educators in your College who work 1/2 time? Have you used, or tried to use, intermittent FMLA to reduce your hours somewhat?

Customer: replied 4 months ago.
Except for tenured faculty, all other faculty are sent yearly contracts in June, which includes their revised salary and sometimes, the courses or topics they will be expected to teach for the fall and spring semesters. I am not tenured and am one of several faculty on 9-month contracts (I am 'off' during the summer, etc.). Once signed by faculty, it is supposed to be a binding contract. Ironically, shortly after I signed my contract in June - my medical problems worsened. Under our previous Dean, our program faculty were allowed to work from home a couple of days a week since we have no students on campus - our students live all over the state. (These are licensed RNs returning to school for their baccalaureate and/or master's degrees). Our new Dean has stopped allowing anyone to work at home, so when I have exacerbations I no longer have the option or flexibility to work at home on days when I am really too sick to get out of bed and go to work. However, I do my work at home - sometimes sitting in bed with my laptop, and sometimes between naps, depending on my physical status. I have always taken great care to be available for my students and they know to call or text me if they need to. Our new Dean has total discretion as to whether she will allow me to go to part time status. This has never been the case before. When faculty wanted to go to part time it was always granted. The contracts don't specify whether faculty could work at 50% at their discretion, but the move to 50% has always been allowed in the past with other Deans. This incident is the first where an instructor may lose her job completely by requesting to go to 50% teaching load. I am a very good instructor and all student evals will verify that. I love what I do, and I need my job. Do I have any options or legal recourse if the Dean decides to terminate my contract instead of allowing me to go to 50%? It doesn't seem fair that I can be terminated simply because of a medical need to go part time when those requests have always been accommodated in the past. Even last spring when I discussed it with our Associate Dean, there was no discussion that this might be a problem, or possibly, no longer an option.
Customer: replied 4 months ago.
No, even though the Associate Dean suggested using FMLA hours for those days when I really need to stay at home, I have not attempted to use them for two reasons. (1) I know of at least one faculty member who has already been 'noticed' by an Associate Dean for 'taking too much time off.' That faculty member took a week of vacation (annual leave); had cardiac tests for 2-3 days while in hospital (sick leave); was discharged and days later had to return for another test (sick leave again), and then home. A couple of days later she received an email stating that she had noticed that this faculty member 'had been taking a lot of time off,' was there something she (Associate Dean) could help her with. So if they are going to be 'watching' these things, I don't want to have to explain myself. And second, I never know when I'm going to have an exacerbation so I really can't use FMLA.
Expert:  Marsha411JD replied 4 months ago.

Thank you for the additional information. There is no way I could tell you what the EEOC or a court of law would do in your case since I don't have all of the relevant information, including your contract, your personnel and medical records, and the evidence that the employer would submit. So, I can only discuss the law and your options.

First, I will address the FMLA issue because that is really the most solid piece of law you have on your side. Despite what you might have heard, FMLA provides absolute job protection for those who have a serious health condition and are certified by their physician as needing to take time off due to that condition. It provides for up to 12 weeks in a 12 month period for those who qualify, which, as I touched on in my information request can be taken intermittently. In other words, when needed. The following link is a good reference to answer your additional questions about FMLA rights and duties: https://www.dol.gov/whd/fmla/fmla-faqs.htm

So, assuming you would qualify, that would be your best course of action, at least initially.

As for whether you can lose your job if you cannot work the hours and schedule that the College has set for you, that is much more complex. Your contract, your medical needs and limitations, and the employer's needs, will all be considered in the determination. If your contract doesn't specifically say you have a right to work less hours than the employer sets, then they would not be violating the contract by letting you go if you cannot meet the requirements of the contract. That said, if they have a practice of allowing for the accommodation that you are requesting, then there is an onus on them, should you file an ADA discrimination complaint with the EEOC, to show that accommodating you would cause an undue burden on their business.

At this point, as mentioned, you would be best served, for job protection purposes, to use up any FMLA you are entitled to on an intermittent basis. Then, if you run out of time off, then you can ask for a reasonable accommodation under the ADA by way of the time schedule you and your physician say you need. If that is declined, you can file an ADA discrimination complaint with your HR/EO office if they have not been involved in the accommodation decision. If that is not resolved in your favor, then you can file a complaint with the EEOC and would want to consult with a local employment law attorney about representation.

Please feel free to ask for clarification after you have read the information at the link I provided. If none is needed, then if you could take a moment to leave a positive rating in the box above, I will receive credit for assisting you today. Thank you

Customer: replied 4 months ago.
The problem I would have with using FMLA is that with my disease process/condition, I never know when I'm going to need to use it as I only have periodic exacerbations - otherwise, I am well. Part of the issue, too, is that I am 69 years old and due to a shortage of teachers in the BSN program, our RN-BSN program faculty were assigned to do all the skills labs for the first part of the semester, when it starts in August. That means walking and standing for hours at least two days per week. I have osteoarthritis and have had a knee injury that required arthroscopic surgery but still causes me lots of pain when I am on it for hours. I take 800 mg. of Ibuprofen every day to be able to walk without pain. There are no other faculty my age who are required to do this type of work. My physician has already written a letter stating that due to my age, weight, medical conditions, osteoarthritis, etc., that I cannot do skills labs or clinical. When this happened with an earlier faculty member, they simply assigned her to teach an online graduate course (she only has a masters degree and yet she is teaching a master's course) Another faculty member was the Specialty Coordinator for her course and she is now 50% and still holds that title and teaches the same course she has always taught, yet she also only has a masters and is teaching a master's course. I have a doctorate and have volunteered to teach in any master's course or DNP course (I have a Doctor of Nursing Practice - DNP degree) and yet so far, I have not been given any of those options. I've only been told that it is up to the Dean whether or not I will be able to go to 50%. I even volunteered to carry a full load just to be able to have the flexibility of going into the office on days when I am not in pain. 50% faculty only have to be in the office 20 hours per week which I could easily arrange. I love what I do, I need my job and my insurance. This will put a major financial burden on my husband who is also nearing retirement. We counted on both of us working this last year to prepare us financially for retirement. I have done all I know to make myself available for teach in any class that is needed - even full time work load - in order to have the flexibility of days. It doesn't seem fair that the Dean can just take my job away from me when allowances have been made for so many other faculty. There was never a problem with going 50% before this Dean came. And when I talked with my Associate Dean last spring she did not indicate that there would be any problem with me doing it either. Now I'm told I may not have a job.
Expert:  Marsha411JD replied 4 months ago.

Thank you for your reply. I appreciate your situation, but I can only tell you what the law is and what your options are. As mentioned, intermittent FMLA is what is specifically designed to address issues like yours. The link I provided does discuss intermittent FMLA in detail as does the following link which is much more detailed and legal in nature: https://www.dol.gov/whd/fmla2007report/chapter4.pdf

It is up to you what you choose to do, but I have a duty assist you in understanding what the process and law is in these issues. As mentioned, an employee would normally attempt using FMLA first, as it provides absolute job protection and then, if they run out of leave, ask for the reasonable accommodation. If the employee refuses to use FMLA, then the employer can use that as a defense to their unwillingness to accommodate the employee. That defense may or may not work under the specific situation, but there is no reason to supply a defense to the employer.

So, if you choose not to attempt to take advantage of the law under FMLA, then you can choose to ask for a reasonable accommodation under the ADA, which I discussed in detail in my first response, and then go from there if you are denied.

Expert:  Marsha411JD replied 4 months ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any further follow up questions for me from the answers I provided to you on the 20th. For some reason, the Experts are not always getting replies, or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I have not received a rating.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information based on the facts you give me even if the news is not good. If you are having technical difficulties with reading, replying or rating,please let me know so that I can inform the Site administrator.Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

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.