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I have been out of work due a traumatic brain injury, my…

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I have been out...

I have been out of work due a traumatic brain injury, my employer called and told me that I have been out of work too long and need to decide if I would like to resign my position or be terminated. I am a registered nurse and work casually at this hospital. My position requires me to work 16 hours per month which I can divide into many number of shifts that I want. Does my employer have the right to tell me that I need to resign or they will terminate my position? I have kept them up to date with letters from all my doctors throughout my recovery, they told me that if I was to return to work I could have zero work restrictions and no accommodations would be made for me even if they were ordered my doctor.

Lawyer's Assistant: Have you discussed the termination with a manager or HR? Or with a lawyer?

I received this call from my manager, he stated that he had a meeting with all the managers and people from HR and came to this conclusion without my knowledge or involvement. I was notified of the meeting taking place.

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

I am an at will employee.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No, I would just like to know what if anything I could do about this situation. I basically feel as though I am being backed into a corner but I'm not sure if I have any right to say or do anything.

Submitted: 25 days ago.Category: Employment Law
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Answered in 3 minutes by:
3/30/2018
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago
Legal Eagle
Legal Eagle, Lawyer
Category: Employment Law
Satisfied Customers: 10,301
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today.

Are you currently on FMLA?

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Customer reply replied 25 days ago
No, I was on non paying FMLA but that has run out.
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

I see. How long have you been out?

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Customer reply replied 25 days ago
I have been out since December 7, 2017.
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

I see what you mean. So, unfortunately, FMLA requires that an employee be out for up to 12 weeks to keep their job. If it is longer than 12 weeks, the employee's position may be terminated. The termination must be limited to the reasons not related to the disability of the employee as that violates the ADA. Under the Americans with Disabilities Act, employers are required to provide their employees with reasonable accommodations and cannot take negative employment action against them just because of their disability. On the other hand, if an employee cannot return to work, the law allows them to give the position to another person instead. I'm very sorry.

Because I value your input, I would like to know whether you have any other questions for me today that I could help you with?

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Customer reply replied 25 days ago
they told me that I would have to resign or I would be terminated due to my brain injury, however they are not willing to allow me to return to work with the accommodations as listed by doctor. I would not be allowed to return unless I had no restrictions at all. Could I be terminated for this reason?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

I’m sorry to hear about your situation and thank you for providing that additional information.

I think that what they are doing may be illegal under federal law. As I mentioned, under the Americans with Disabilities Act, employers are required to provide their employees with reasonable accommodations. According to the U.S. government:

“A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities.”

An employer also cannot take negative employment action against an employee for asserting their ADA rights. During an application for a job, an employer can ask if you can perform the duties of the job with or without reasonable accommodation, but they can’t ask you about your disability. An employer can refuse to hire if the nature of the disability would pose an objective and unreasonable risk to the employee or others.

If an employee feels as if they have been discriminated against, then they can file a discrimination complaint with the Equal Employment Opportunity Commission. The Equal Employment Opportunity Commission field office in your area will serve as the agency that would oversee the complaint, should you decide to file one.

How else can I help today?

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Customer reply replied 25 days ago
What documentation would I need to provide to see if I would qualify under the ADA law? In your opinion do you think I should contact an attorney before contacting my employer or would it not be beneficial to me?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

All you would really need are things like medical appointments. I would recommend contacting a labor and employment attorney because they often specialize in these discrimination cases.

Did you have other questions for me about this?

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Customer reply replied 25 days ago
Is it going to be problematic that I was told these things over the phone by my employer and it is not written on paper. I do have an email from him stating that if I was not better by my next medical evaluation that I would need to separate from the company. But I was told to either resign or be terminated over the phone.
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

It may make a bit harder to prove that they gave you this ultimatum so you may want to request it in writing from the employer to make your job a bit easier going forward, in addition to the email that you have.

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Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

How else can I help you today?

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Customer reply replied 25 days ago
I am suppose to be contacting my employer today after my most recent doctor's appointment and let them know how it went and what they said about my return to work. Would you recommend waiting to contact the Equal Employment Opportunity Commission field office first?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

Do you feel confident you could return to work or no?

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Customer reply replied 25 days ago
I am currently not cleared to return to full duty. I am waiting to get a new pair of glasses to help with my light sensitivity but I have not been cleared yet by neurologist I don't see her for 2 more weeks. I am hopeful that the glasses will help however I don't know at this point because they have not been tested. Also my doctor has stated shortened work hours and working from home until I am able to return. But this employer stated I am not allowed to return unless their are no restrictions, they are unable to accomdate any work restrictions.
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

I see what you mean. So, it's illegal for them to say that you can't return unless there are no restrictions. They're required to work with you under the ADA. Accordingly, my recommendation would be to explain that you're close to being back to work, but the reasonable accommodations will help both you and them if they're willing to follow the law (or something to that extent).

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Customer reply replied 25 days ago
I do live and work in Minnesota does this change any of the laws?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

No. It doesn't. The law is the same there.

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Customer reply replied 25 days ago
When I call him to request in an in person meeting with all the managers and HR personnel that he informed me that he met with who all came to the conclusion that I needed to resign or be terminated to discuss this matter, if he is unwilling to meet face to face would you recommend going forward with filing a discrimination suit?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

Yes, that is what I would recommend.

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Customer reply replied 25 days ago
If I try to meet with them and am rejected and go ahead and file the suit and in the mean time am terminated does that impact the discrimination suit? I don't want to resign however I am a young person in the workforce and have many years of employment ahead of me and don't want a termination on my record.
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

Whether you're terminated will be up to them, but they can't terminate you because you filed a discrimination suit.

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Customer reply replied 25 days ago
if I am terminated and were to win the discrimination suit would the termination be taken off my employment record?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

Correct.

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Customer reply replied 25 days ago
Where would I go to find information on where my Equal Employment Opportunity Commission field office is located? Is it a state or county entity? Do I have to pay money to file a suit?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

If you click here, you can find the closest one:-)

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Customer reply replied 25 days ago
Would filing this discrimination suit have any negative implications on my other nursing job through a different employer? My other employer is fulling willing to work with any restrictions that my doctor has stated.
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago
It shouldn't affect you and your filing isn't public record.
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Customer reply replied 25 days ago
I would like to contact the Equal Employment Opportunity Commission field office to talk with case worker to see if they believe I have a case before I contact my employer to ask if they would send me a copy of their ultimatum and request a meeting with them would that be beneficial or should I try to work with my employer first?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

I always say try to work with your employer first and if they don't want to work with you, then let the EEOC step in.

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Customer reply replied 25 days ago
Okay, do they ever reach settlements through mediation or otherwise that allow the person to return to work or is a monetary settlement?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

Actually, most cases are settled through mediation or a return to work (or both). Rarely do they go all the way to trial.

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Customer reply replied 25 days ago
Would what work restrictions a person can have as recommended by their doctor be something that is decided in mediation?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

Yes, absolutely that's something that can be decided in mediation.

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Customer reply replied 25 days ago
Is their other excuses that my employer could use in regards ***** ***** injury that they could use a legitimate reason for termination, such as shorter hours as recommended by my doctor upon returning to work or wearing a hat to block out the light as instructed by my doctor just as examples?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

They're required to provide at least reasonable accommodations, but if the accommodations you need are "unreasonable" in that you can't do your job effectively or at all, then they have the right to terminate, but they have the duty to do what they can to find reasonable accommodations for you. What those are would be hard for me to tell as it depends on your job duties and what they think and what you think would work best consistent with your condition and doctor's orders.

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Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

Hi, I hate to do this to you, but I have to step away from my CPU because I'm signing off for the night. If you have other questions, you're welcome to keep asking and I'll be back tomorrow to assist. If you're satisfied, you're welcome to leave me a positive rating (which I would sincerely appreciate) and you can come back any time:-)

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Customer reply replied 25 days ago
I can effectively perform my job duties, per my provider I am completely competent and cognitively back to baseline I just need accommodations such as wearing tinted glasses, a hat to block out the light and shorter work hours initially to ease myself back into work and ensure that my symptoms don't flare up. My provider is fully confident that I will be able to return to work in the full capacity in a short amount of time I just need these accommodations in the beginning to ease the transition. But I was told by this employer that I could not return unless their were zero accommodations, which I was unaware of but according to them is legal to enforce, is this true? I was never informed prior to this injury or during my weeks off that I was required to be restriction free if I was to return to work at all. I was unaware that these conditions existed, does my employer have the legal right to enforce this "policy"?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

They're required to provide those accommodations under the ADA. What they're telling you is wrong.

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Customer reply replied 25 days ago
Okay, am I able to enforce these issues alone or do I need to get the EEOC involved?
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

You can enforce them alone; the EEOC is there in case they don't comply with the law:-)

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Customer reply replied 25 days ago
Okay thank you very much for all of your information it was helpful to know what is right and wrong and I appreciate knowing that I am not in this alone.
Employment Lawyer: Legal Eagle, Lawyer replied 25 days ago

The pleasure is all mine! Unless you have additional questions, there’s just a few other things I’d like you to know before we wrap up this conversation:

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