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Jane Doe Deer
Jane Doe Deer, Attorney
Category: Legal
Satisfied Customers: 3864
Experience:  Atty. 27+ years; Plain English answers to family law, employment, landlord-tenant, & other questions
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Is COPD and asthma covered under the ADA

Resolved Question:

I have the above illnesses and have unfortunately missed 1 month of work last year being out on short time disability. I was out last week for four days also. Now my employer has asked me if I want to work from home or cut my hours. I am not sure what to do because we are downsizing. I have been with the company 21 years and been considered a high performer. I also know my raise and bonus will be lowered this year for the first time in 21 years and would like to know how to handle the situation since I believe they are using my illness against me - but of course they will say I did not meet my objectives.
Submitted: 5 years ago.
Category: Legal
Expert:  Jane Doe Deer replied 5 years ago.

Thank you for contacting Just Answer. I look forward to assisting you.

 

While we write back and forth, please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Sometimes I'm unable to read your entire question until AFTER I write back to you.

 

Although it's usually five minutes, sometimes there can be a delay of an hour or more in between my answers because I may be researching the answer to your question, helping other customers, or taking a break. If we are writing late at night, I may have to go to sleep and resume helping you the following morning.

 

I need the following information before I can answer your question:

 

Can you please tell me whether or not you are willing to file a discrimination claim?

 

I'll look forward to hearing from you,

 

Jane Doe Deer

 

Customer: replied 5 years ago.
Right now I'd just like to keep my job. I have approved FMLA at work and actually thought my performance was fine. The has been no indication by my boss otherwise. I'm in HR so I just happened to come across my bonus rating yesterday. We are not told of our rating until March. As I said I was out 4 days - 2 last week and 2 today returning on Wednesday. Thursday my boss called me in and said she was concerned about my health and that I need to look at our alternate work schedule policy and come up with what is best for me. She said she was open to anything - cutting down on hours or remote working. She said she doesn't need to see me. Then of course she said the work needs to get done and that she knows I'm a "willing" worker and always have been. She proceeded to tell me that no matter what happens at work I am the mother of 2 young children and need to be there for them. Then she told me she is not trying to get rid of me. I said why should I think you would be - I work hard for this company and always have.As I said in 21 years I have never had a performance problem and have been rated in the top percent year after year. I don't know what to do. Part of me would like to cut back on my hours - maybe a day per week and work remotely 1 of the days and be in the office 3 days per week.
Expert:  Jane Doe Deer replied 5 years ago.

While COPD and asthma may not be covered by the ADA, it may be covered by NJ state law and the state discrimination office. You can check with them here: http://www.state.nj.us/lps/dcr/filing.html

As you probably know from working in HR, state discrimination laws often provide more protection than the federal law. There have been recent changes to the ADA, however, so you may now be covered under the ADA where you may not have been a couple of years ago.

 

It sounds to me as though your boss wants to keep you and is trying to be flexible and accommodate your health concerns (your dealings with your children is none of her business).

 

I suggest that whatever you do, to do everything in writing. For example, if you want to cut down to 32 hours, and telecommute one of those days, put that down in a written proposal to your boss - but only if YOU want to.

 

If you do make this arrangement, make sure that you will be covered by workers' comp on the day(s) you telecommute.

 

I'll be here and available the rest of Saturday if you'd like to talk some more.

 

Jane

Jane Doe Deer, Attorney
Category: Legal
Satisfied Customers: 3864
Experience: Atty. 27+ years; Plain English answers to family law, employment, landlord-tenant, & other questions
Jane Doe Deer and 4 other Legal Specialists are ready to help you
Customer: replied 5 years ago.

Thanks for your advice. Our former site nurse who is still a friend said that COPD is covered under the ADA but I will check futher. What I don't like is what I saw regarding my upcoming bonus and don't know how to handle it when I'm told. As I said, I have doumentation that my previous ratings were high. Now we have a new site director who doesn't know me well at all who I know influenced some of these ratings. Maybe he does not like the fact that I've been sick - many negative comments are made about STD at my site. If fact I just received an email from a manager showing some of the people he didn't want to give raises to and he referenced them being on STD. I am going to keep a hard copy of that. Though I've known my boss for years I know I can't trust her. I don't think she wants to get rid of me but maybe the site director does. He's just a short timer (completed 1 of his 3 years) from the U.K. who I think is there to either shape us up or close us. Also, the 4 people they just eliminated and gave packages to were all over 55. I can't believe noone has said anything about that yet.

 

Any flexible work arrangement will be in writing. I work for one of the top pharma companies so they are strict with documentation. I guess what advice I'm looking for is how to handle a low rating when I'm told. Do I reference the fact that I wonder if this has to due with my illness or am I opening a can of worms? I know I can't just sit back and take it so I may just write a rebuttel to be attached to my review outlining the work that I've accomplished and why I don't agree to whatever may be said. Also, she did not do any type of mid-year or any other review during the year telling me she wasn't satisfied with my performance.

Expert:  Jane Doe Deer replied 5 years ago.

I suggest that you write a polite and brief rebuttal to your evaluation. The trouble is, if you are an "at will" employee it doesn't matter how long you've worked there; walk on eggshells as though you've been there two weeks, especially with a new manager.

 

Keep records. In fact, you may want to keep a work journal at home. Just be aware that should you ever have to go to court, the opposing side has the right to read your journal.

 

And, again, if you're "at will" the employer can fire you at any time, for no reason at all. Given that, if the employer fails to give you a review, provide a gentle reminder in writing, and never speak of it again.

 

If the employer IS discriminating against you, they'll say they're not discriminating, and that it was a behaviorial or performance problem. Don't give them that excuse.

 

Thanks for paying promptly,

 

Jane Doe Deer

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