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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 19169
Experience:  Employment/Labor Law Litigation
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I have been put on Suspension Pending Investiegation

Customer Question

I have been put on Suspension Pending Investiegation followed by Termination from a seven minute bout of unconcienceness (after obviously fighting it for over 10 minutes previously) while at a duty station. This was documentated on video. My fatigue was from "fentanyl" a skin patch supplied pain medication. This is part of a Workmans Comp maintained regamine treating cronic pain from a lower back injury in the 1980s. This particular medication is prescribed at a three day rotation from the manufacturers recommendation and I have a problem on the third day.
That being said, I have complained to the prescribing doctors several times of my symptom only to have them describe the mechanics of the "patch" as delivering the highest dosage on day one and tapering off then towards day three leaving me to surmise that my tiredness to be from withdrawal with little to be done.
After being unable to reconcile my experiencies I sought advice from my pharmacist. His description, also borne out by information on the manufacturers web site, is that the "patch" delivery is weakest on day one and strongest on day three, contrary to my doctors. I was suffering from an overdose symptom, unkowningly, with little that I could do.
I was able to submit an ADA Medical Certification form during the Suspension Investigation phase that descbed "sedation" as a symptom of the treatment medications.
Taking into account and being able to present this information can the termination proceed?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance.

The employer can choose to take that risk and terminate. When considering the ADA, the law doesn't state that people with disabilities cannot be terminated. It doesn't even say that people with disabilities cannot be terminated based on their disability (for example, a pilot can be terminated for going blind). Rather, all it does is require the employer to grant reasonable accommodations to a disability that would allow the person to be able to do the job.

Now, that is what all the litigation and argument comes down to....whether or not there is a reasonable accommodation that you can be given which would allow you to work safely in your job. If the employer wants to take the position that there is not a reasonable accommodation and that there are "bona fide occupational requirements" that you can't meet, they can make that argument. You would then file a complaint with the EEOC in your state so that a federal agency can investigate the matter fully and grant you the right to sue in federal court, so that ultimately a jury will decide whether or not the employer failed to be reasonable here.

If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.

Expert:  Allen M., Esq. replied 1 year ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required.

If you need further assistance, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.