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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Employment Law
Satisfied Customers: 41221
Experience:  I provide employment and discrimination law advice in my own practice.
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I have multiple sclerosis and am on FMLA. I miss at least one

Customer Question

I have multiple sclerosis and am on FMLA. I miss at least one day a week due to sever fatigue and cognition problems. When I am at work, I always am struggling. I was put on a Performance improvement plan at work because of poor performance. I didnt realize my ms was causing so many problems. I had been counseled before and tried to improve. I didnt realize I was covered by the ADA, and I never knew i could request reasonable accomodations. Now I am out on short term disability for 6-8 weeks per drs orders. My boss told me to file for long term disability. I dont want to - I want to work. Just wondering what I should do.
Submitted: 2 years ago.
Category: Employment Law
Customer: replied 2 years ago.
Also because i am on a performance improvement plan with 90 days to improve, can i still be fired if i return to work and request accomodations?
Expert:  Dimitry K., Esq. replied 2 years ago.
Thank you for your question. Please permit me to assist you with your concerns. If I may ask, in what state are you located in? Also, and honestly, do you believe that you can still perform your work, or not really?
Customer: replied 2 years ago.
I am in Colorado. And yes I do think I can but a 40 hour week is hard. I get maybe 3 hours a day when I feel just ok. My concentration, memory and energy fade fast and hard.
Customer: replied 2 years ago.
Sorry for delayed response - it's 2am here. Will check in in the morning...
Expert:  Dimitry K., Esq. replied 2 years ago.
Hi, Here is the issue from the facts that you provided. The A.D.A. does provide protection for those who are seen as having an impairment or thought of having an impairment. The employer has no legal right to discriminate and does have a duty to provide reasonable accommodations whenever possible. But this obligation is offset by the obligation on the part of the employee to be able to perform the work as if he or she is not impaired. That means that if the job requires 8 hours of movement (for example), and you can only move for 2 hours, the employer is under no obligation to extend the work position or opportunity to you if you are not able to perform it. An extreme example may be a school bus driver who develops glaucoma...since his eyes are necessary to drive the bus, the employer can fire or remove that driver from his duties without violating the A.D.A. As such, if you are seen as not being able to perform the work, the employer does not have to extend that position to you unless their demands are flexible or there are legitimate 'reasonable' accommodations available. I do not know your situation specifically, but I am providing you with the scope of the A.D.A., it is not just a law that grants rights, it also requires certain obligations from the employee. Having said that, you cannot be terminated for requesting accommodations. You have the right to demand them if you can prove or show that you are able to fully and completely perform your work. Your quality and your accommodations are somewhat separate under the circumstances. Sincerely, ***** *****
Customer: replied 2 years ago.
But since I was put on this PIP, which laid out conditions which I'm not able to meet without some accomodations - can they still fire me based on the fact that i'm basically on probation? The job is very sedentary, and the essential functions are no problem. The problem is basically theyre sick of me being out on fmla days so theyre calling me 'undependable' and saying my coworkers dont feel they can depend on me to help them when needed - which incidentally, these complaints only began when a new executive assistant started who treats me like i'm her assistant. Ive been here for almost 3 years. When i started having more symptoms and was missing more work, they had a doorbell installed so that if no one was sitting at the front desk to buzz people into our secured office, someone could always answer the door. This wasnt an accomodation I requested. i didnt even know they had it done until i was told 'it so when youre out, no one has to sit at the front desk'. Aside from some marginal tasks that I have trouble with (moving around heavy boxes of copy paper, etc) I did my job fine. Id forget things from time to time but that can be corrected with some accomodations. I feel like I'm being ganged up on a little.
Expert:  Dimitry K., Esq. replied 2 years ago.
Hi,
They cannot fire you over FMLA leave, or over 'reasonable' accommodations. But they can terminate you if you are unable to perform your work--so if you can prove and show that your requests are reasonable, they cannot use your FMLA or your ADA demands against you.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
I'm not on fmla leave, I'm on short term disability leave. I learned I can take them both (fmla and std) concurrently and emailed my boss/HR director to request this, and I am getting no response from my her. I have sent the email twice asking for confirmation of receipt and am getting no response -- but I know she's receiving it because she's received every other email I've sent. I guess I'll send it certified mail ? Or email again and copy the CEO of the company? Regardless I am documenting everything. And yes, I am able to do my job.
Expert:  Dimitry K., Esq. replied 2 years ago.
Hi, You may need to consider contacting HR directly and ensuring that they are aware of your request. Ultimately they need to accept and approve your FMLA if you are already out on leave, and you can likewise inform them that your superior has received the request but as yet did not respond. Sincerely, ***** *****