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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 was red as a "project employee" whose position is

Customer Question

I was hired as a "project employee" whose position is sponsored by a business unit year to year. As a "project employee", I receive health, PTO, FMLA, 401k and other benefits that regular employees receive, including ADA accommodations. I went on a 2.5 month approved FMLA leave from mid March to early June 2015, and returned on intermittent leave until it ended on 8/10/15. On 8/11/15 the company LOA HR Representative discussed ADA accommodations and the ADLM process. I submitted my portion on 8/13/15. The day before, my boss asked me if my FMLA was up and then continued to discuss performance issues and ended our conversation in saying "I am not going to write you up, I just want you to be aware of the complaints by internal customers", given your appts and not being here when you have "an MS-related episode" (which was approved time off under FMLA). From that point on, my boss wanted a list of all of my appts in which I would not be coming in later in the morning i.e. between 9:30a and 10:30a or leaving early at 4:30p. I submitted those hours to both my boss and the LOA HR Rep. Today, I was called in the office by my boss and she proceeded to tell me my job will no longer be funded and that I should resign tomorrow 8/25/15 v. being released due to lack of funding of my position from the business sponsor who is complaining about my performance. I spoke with the HR Director, as my position is in HR. She told me to not resign until she gets more facts on this case. However, she agreed with my boss and said that if the business unit has a funding issue they can make cuts as they please. The concern is this VP is the primary decision maker on funding and is unaware of my FMLA or interim accommodations. His impression as I understand it from my boss is that I am choosing to not work with his team or be available when they need me. I believe there is no lack of funding, and do believe he wants another person who is "available" to work with his team. My boss confirmed that two things are happening, 1) VP not happy with my performance and 2) there is a lack of funding for my role. There is more than enough work for a full-time person, and believe if I didn't have this condition, I would still be working there. Prior to this condition, my performance was very good, and received favorable merit increases due to performance. What should I do next?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your question. Please permit me to assist you with your concerns.

If I may ask, how many employees does this employer have at this time? As far as being a 'project employee', are you under contract per project, or no?

As far as your condition, is it affecting your performance? Not just being at work, I mean, does it affect the quality of your work?

Customer: replied 1 year ago.
I work for Macys at the Corp IT HQ in Atlanta that employs over 2200 ees. I received an offer letter as a "Talent Acquisition Specialist". There wasn't a formal contract, other than the offer letter itself. As long as there are positions to be filled in Recruiting, then my contract continues. My boss pulled positions from me and gave them to the Lead Recruiter, as well as pulled a project from me that hadn't officially kicked off. My approved intermittent time under FMLA was up to 4 days off per month plus scheduled appts as close to the beginning or end of day with minimal disruption to work hours. The quality can suffer if clients and/or candidates need immediate assistance on days when I am away from work. I was setting up a contingency plan as part of my accommodation, but that has not been reviewed/approved by ADLM.
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your patience.

It sounds like you are an 'at-will' employee rather than contractual because there is nothing expressly written in the contract as far as your availability and your position. That may make a difference because it may permit you to claim greater protection because it surely does not appear that you are temporary, seasonal, or specifically 'project' based. And that does give you some protection.

Now, it does not provide you as much protection as you may hope. The ADA is not something that grants full protection rights. The ADA is somewhat misunderstood as a law, it is not full protection from termination or adverse action, it is merely a right for protection as far as direct concerns when the disability or impairment in question does not affect your work. For example if you work as a bus driver and develop glaucoma which bars you from seeing, the employer can still legally terminate since with this impairment the bus driver cannot perform the work. The employee must still be able to perform the work in the same capacity as someone who is not impaired. So if your employment quality suffers, on that basis you can be removed, but you cannot be removed for being ill, and I hope I was able to explain the difference.


Dimitry, Esq.

Customer: replied 1 year ago.
Currently I am eligible for long term disability at my job.We haven't fully reviewed what accommodations can be made, as I am still learning about Multiple Sclerosis. Because there are times it is difficult for me to come into work, if given the opportunity for virtual work accommodation, there is a high chance of performing at the same pace. Mentally, I can follow through with the work. In fact, my boss specifically told me working in a virtual job would probably help me significantly. The company as a whole has not embraced telecommuting, so therefore my boss said it would be difficult to get that approved. We do have Web cam capabilities, audio text capabilities but these options have not been explored as part of my accommodation. If I resign, I will not be able to collect unemployment in case it is difficult for me to land a virtual position. Most are contractual and do not pay enough to cover significant benefits.
Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

Then in that case request telecommuting options. If the practice is already embraced, it is fairly hard for your employer to claim that this would create some sort of 'unreasonable accommodation' for them unless your job must be in person and must be physically 'hands-on'. But if you do not ask for accommodations, the employer does not have to provide them--the ADA requires them to assist with 'reasonable accommodations' when requested, but not necessarily to volunteer for it.


Dimitry, Esq.