Notice of Disability/Adverse employment action

[pittguy578]

What is the name of your state (only U.S. law)? PA

I had posted previously on my situation and just had one quick question regarding one aspect of it.

As I indicated previously, I had been with the same company since 2002 with a stellar performance record. I work in the insurance industry. Due to the fact the company was understaffed...we were literally receiving twice as much work, sometimes more than that, per month. In order to keep up and try to stay on top of things so you would have good performance you were essentially forced to work long hours in a very high pressure environment. I actually was able to excel for a significant time period at first and actually had some of the best numbers in the state. However, as the months wore on and there was no respite in terms of pace/workload, I began to suffer from depression/burnout/panic attacks once again.


During the final month before I was forced to take my leave, I had notified three managers that I was having extreme difficulty peforming the duties of my job due to my condition. I was very forthright in terms of my symptoms. I had been having panic attacks. I could not concentrate. I was seriously depressed. My reason for communicating that to my employer is I was looking for them to provide me assistance in terms of temporarily reducing my workload so I could try to recover and get back to full peformance. The workload was not evently distributed, and I was receiving more work than other people in the department because they "thought I could handle it" That was obviously not the case.

What it boils down to is I had multiple conversations both via e-mail and in person with my immediate supervisor..and my supervisor's manager, and the local HR rep who happened to be my immediate supervisor's sister advising them of my condition. I was hoping to get well without having to take a leave of absence. I got no respite or assistance during that month,and I knew I was failing and not able to perform the job.

Needless to say my performance during that month was pretty bad as to be expected. I knew it was a disaster waiting to happen and was warning everyone about it before hand and hoping to get some help that never came.
Due to my performance during that month I ended up being put on a performance warning.

I am not sure if being put on a performance plan/warning was an adverse employment action as my employer had constructive and explicit notice via multiple in person conversations and e-mails notice of my disability and inability to perform my job at the time. Also it was strange that I had been a high achiever for most of my career and my performance suddenly went in the tank. I in good faith was trying to work with my employer to get myself back to health so I would not have to take abscence. It appears that basically trying to stay at work and functional had a negative impact on me..if I had taken myself out as I could have my performance would not have declined, and I wouldn't have been placed on the warning.

 

[davew128]

Thanks for sharing.

 

[CAemploymentlaw]

Talk to a local employment lawyer about this. The law in this area is complex and there are a lot of things that cannot be determined from the information you provide here. For instance, it is not clear whether your employer is large enough to be covered by the ADA or FMLA, two federal laws that could be potentially implicated here. Similarly, it is not clear if there are any long-term effects associated with the performance plan. An employment lawyer can advise you about whether to make a formal written request for a disability accommodation under the ADA [or a similar state law] or perhaps for a period of leave under the FMLA to obtain treatment for your condition and have time to recover.

As of right now, it is doubtful you have any meaningful legal claim because you are still employed, so whatever harm you have suffered by being placed on the performance plan is somewhat theoretical (you don't have lost wages, yet, for instance). However, you need to talk to a lawyer and get clear on whether you need to get something in writing in the nature of a request for disability accommodation or leave.

 

[cbg]

Don't disagree with the above; just one cautionary point;

Under NO law, including the ADA, is the employer required to accept poor performance or eliminate essential functions of the position.

 

[pittguy578]

My company has a formal internal resolution dispute process for these types of statuatory claims. It also could include arbitration by a neutral arbiter.
Should I notify the HR manager that I wish to pursue IDR/Arbitration?

 

[swalsh411]

I would attempt to work it out internally as long as you feel that your employer will in good faith attempt to work something out.

That does not remove the right to pursue other remedies if you are not satisfied.

Having said that, it sounds like you simply aren't able to do your job due to your condition. Is there some sort of reasonable accomodation that would allow you to continue to do your job?

 

[pittguy578]

I would attempt to work it out internally as long as you feel that your employer will in good faith attempt to work something out.

That does not remove the right to pursue other remedies if you are not satisfied.

Having said that, it sounds like you simply aren't able to do your job due to your condition. Is there some sort of reasonable accomodation that would allow you to continue to do your job?

I am going to notify HR today. I am not really 100% confident my employer will work things out. This company was really good to work for at one time, but things have taken a turn for the worse. The work environment has turned terrible. I wouldn't hesitate to call this a hostile work environment.

My coworkers and I have been fed up with the way we have been treated and the way we have been understaffed. Our concerns have gone unheeded.
It is so bad that people openly talk about not getting cared if they get fired and don't hide the fact they are looking for other employment. Other people have simply left the company-these were quality employees that were fed up. The management used to be caring and supportive, but that suddenly changed.

 

[swalsh411]

OK but none of that is really relevant.

 

[pittguy578]

I got a call from an employment attorney here in Pittsburgh.
He wants to meet with me ASAP. He thinks I may have a case
If I should speak with HR, should I notify them I have an attorney or should I not disclose that?

 

[ecmst12]

You don't have an attorney yet. If you sign a contract with this one at your meeting, he will instruct you on what to do if/when HR calls you.