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I have been on short term disability through my employer

plan and fmla for 6...
I have been on short term disability through my employer plan and fmla for 6 months due to breast cancer complications. My doctor has given me a return to work but restrictions on no typing or mouse clicking due to lymphedema. I am a computer programmer by trade. The employer wants me to give a resignation since my FMLA is up and STD benefits exhausted. I was denied LTD due to breast Cancer being a preexisting condition and I am refusing to resign. If they fire me do I have recourse? I cannot perform typing or clicking however they are not offering me accommodations. They are saying they have no use for me. What do I do?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: North Carolina
JA: Is the employment agreement "at will," union, full time or part time?
Customer: at will full time
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
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Answered in 1 minute by:
11/1/2017
Patrick, Esq.
Category: Employment Law
Satisfied Customers: 13,207
Experience: Significant experience in all areas of employment law.
Verified

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Is there some way that you can do your job without typing or mouse clicking? If so, what do you envision exactly? I very much look forward to helping you on this matter.

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Customer reply replied 1 month ago
I can train, instruct and use verbal software to write. They are not offering any of this. I am being terminated.

Thank you. Do you believe you can perform all the essential functions of your original job with these restrictions? Or are you proposing in essence a new type of position?

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Customer reply replied 1 month ago
If you look at my actual job description it does not mention typing or clicking a mouse. I am a business information analyst. I don't feel the job description excludes me from doing a job within the parameters.

Maybe let me try to ask my question another way. Can you still accomplish for your employer the same job tasks that you were accomplishing before with the aid of some sort of accommodation (i.e. voice typing)?

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So if you looked at the most important and essential aspects of your job from before, can you still accomplish those things for your employer now?

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Customer reply replied 1 month ago
I believe I can but they believe I can't apparently
Customer reply replied 1 month ago
I would need an accomodation, e.g. voice software but I could still perform the job

Thank you.

So the reason why I'm asking this is because once FMLA leave has been exhausted, the only remaining protection is that afforded by the ADA, which requires employers to "reasonably accommodate" disabilities. A reasonable accommodation could be additional protected time off work, so that's one possible thing you could argue. But if you don't have a date in the near future where you can return and fully perform your job, then this is really only a short term fix. The other type of reasonable accommodation would be some sort of aid or assistance that would enable you to safely and effectively perform all your essential job functions. Key, though, is that you are able to actually perform all your essential job functions from before. The courts have generally been quite clear that an employer is not required to create a new position as a form of reasonable accommodation. They are only required to offer aids or assistance that would enable the employee to do the job for which they were hired.

So here it sounds like you believe you can still perform all your essential job functions if you are afforded the accommodation of voicetyping. It would be prudent to advise your employer of this fact in writing as soon as possible and let them also know that the ADA requires them to reasonably accommodate you and this is a reasonable accommodation. Then if they still terminate you, your recourse is to file a complaint for violation of the ADA with the EEOC. The EEOC will investigate and attempt to mediate a resolution with your employer. That not forthcoming, they will either file a lawsuit on your behalf or issue you a "right to sue" letter, which will enable you to sue in civil court with the assistance of an attorney.

I hope this helps. If I can clarify anything at all for you, please do not hesitate to ask. It is my pleasure to assist you further if necessary....

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Please let me know if there is anything else I can do for you?

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Customer reply replied 1 month ago
This is their response to me requesting accommodation

I would point out to them that typing and mousing are not your "job," rather they are tools which enable you to DO your job. Therefore, if substitute tools can be provided (voice typing) that allow you to do the same job, then that is potentially a form of reasonable accommodation.

Patrick, Esq.
Category: Employment Law
Satisfied Customers: 13,207
Experience: Significant experience in all areas of employment law.
Verified
Patrick, Esq. and 87 other Employment Law Specialists are ready to help you
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Customer reply replied 1 month ago
I responded with what you said, they are now asking if I want to apply for ADA ...thank you!

You are very welcome, and yes, that is precisely what you want to do. I'm glad I could help here. I wish you the best with your health and continued employment.

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Patrick, Esq.
Patrick, Esq.
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Category: Employment Law
Satisfied Customers: 13,207
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