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Termination pending...bi-polar disorder

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helpsis

Junior Member
What is the name of your state?What is the name of your state?CO
My friend has been placed on administrative leave from a gov job and notified of intent to terminate in 30 days. She was recently diagnosed with bi-ploar disorder and definitely fits the classification for disabled as set forth by ADA and the EEOC (condition which substantially limits one or more major life functions). Her employer's claims are not unfounded though; she has been sited for unplanned leave and excessive tardiness and is being dismissed on that basis. However, our question is whether there is an argument against termination (she has 7 days to file a response). Possibly she could be placed on FMLA leave for a 3-4 week period and hopefully get medication stabilized and return to the same or a different department?

Any help appreciated.
 


cbg

I'm a Northern Girl
Nothing in the ADA gives her the right to violate company policy and the company has no legal obligation to overlook such policy violations, regardless of whether she has a condition that qualifies her for ADA protection or not. A person with an ADA qualifying condition CAN legally be fired for excessive absences.

That being said, there's some pretty important information missing from your post. Before I attempt to answer your question, please answer these questions of mine:

1.) Has she told her employer of the condition and asked for an accomodation?
2.) If so, what was the response?
3.) Did these absences occur before or after she notified them of her condition?

There may be more later, depending on your answers, but that's enough to start.
 

helpsis

Junior Member
RE: Termination Pending...bipolar disorder

State = CO
Sector = gov
Thank you for your prompt reply to my post. Below is the missing information you requested.
1. Yes, she had told her employer in two written replies to disciplinary actions. Both actions were for being tardy to work. She indicated that she was recently diagnosed for bipolar disorder, was on new medication, and frequently awakened several times during the night to look at the clock in fear of being late to work. The citations were for times ranging from 5 minutes on 2 occasions to 17 minutes on another (she has held a job with this branch for 25 years and prior to the last year was allowed flexibility in arrival/departure; therefore, it is an adjustment to arrive precisely on time. Further, she is also not allowed to report early.) In fact, several times she thought she arrived on time but found later (in the reprimands) that she had been marked tardy/awol.
2. The response was that disciplinary action was in order (suspension without pay) and any further incidents would result in further action--which is where we are now.
3. Apparently some of the tardies occurred before the first action and response. Then there were additional occurances, followed by a second reprimand and response, and now a notice of intention to terminate.

She has not requested fmla and family members were unaware until recently of the severity of the debilitating condition. The doctors statement I have in hand indicates medium severity, mixed state, bi-polar disorder. Following the termination notice, she was deemed suicidal and taken to the emer psych ward of a nearby hospital (by a friend) where she was held involuntarily for 72 hours, then later agreed to a voluntary extension of 2 additional days. She is now, for the first time, on an intensive program of couseling and close supervision by psychiatric care.

Thanks.
 

helpsis

Junior Member
No, I do not find a request for accommodations, using that specific terminology. She made a plea for understanding in layman's terms, "I have been under a doctor's care for depression, and the diagnosis was recently changed to manic/depressant or bipolar. I have been on a number of different medications and dosages during this period in an attempt to get this chemical imbalance under control. This condition causes drastic mood swings, which are totally unexpected on my part and totally out of my control. My doctor wrote a brief note to this effect, which I gave to <supervisor>, but which she said was not sufficient. My latest change in medication was only two weeks ago, and this one seems to be having a greater effect in stabilizing my moods, at least so far."

Are we out of luck without a request containing that specific wording?
 

cbg

I'm a Northern Girl
Before I answer any further, I have a question for you.

Did you post a question about this situation on another board, not here on Freeadvice? You have every right to do so of course. My confusion lies in the fact that while it appears to be the same situation, the facts posted here do not match the facts posted there. If this is indeed the same person, I would need clarification on what actually happened, before I could make any comment on what options you may or may not have.
 

Beth3

Senior Member
Agreed. I'm not prepared to comment until you tell us which set of facts are correct: those you've posted here or those you posted at another site.
 

rmet4nzkx

Senior Member
There is a process for requesting Reasonable accommodations under ADA. It is more than a note or a note from the doctor. Here is a liink with information on the possibility of ADA accommodations for bi-polar disorder, As CBG stated, this does sound very familiar.

Job Accommodation Network Bipolar disorder: Bipolar disorder (manic depression) http://www.jan.wvu.edu/media/Psychiatric.html
 

helpsis

Junior Member
I have not posted to any other sites, so it is possible someone else has a similar situation? I will look for that post and see whether I can learn anything from it.

With your help and reading other information on ADA, I understand that "...in most instances ADA does not protect persons who have erratic, unexplained absences, even when those absenses are the result of a disability." Further, the disabled employee must demonstrate (1) the employer knew of disability, (2) employee requested accommodations or assistance, and (3) employer did not make good faith effort to assist.

In the instance, I regret that my friend did not seek help or request assistance sooner using the appropriate legal verbage; however, the lingering question is when is it too late to make a request for accommodation? Having just spent a week in a psychiatric facility and being under intense continuing care, there are grounds for a FMLA time-off request. Do we have any chance of being granted a 4-week FMLA leave now, since in fact she IS still employed at the moment and is just on administrative leave? The doctors expect the employee could resume a regular work schedule after a few weeks of treatment and she could be returned to a vacant position within the organization at that point.

In reviewing the sequence of events documented by the employer over the past few months, along with the employees responses, it seems apparent to me that in the beginning the infractions were infrequent and of limited duration (as noted two 5 min tardies, one 17 minute) and the employer appeared to be looking for grounds for reprimand. Unfortunately, after the initial reprimand, and to a greater extent after the second reprimand, the employee's ability to arrive on time seemed to get worse rather than better. Also, the language used by the supervisor in the reprimand indicated that the supervisor was very harsh in confronting the employee and sought to intimidate. That said, the employer did appear to use the most likely successful tactic for dismissal of the disabled employee--erractic attendance--and has laid a very complete papertrail for support of dismissal. I have no desire to force an employer to accept underperformance, but still regret that a person with a positive 25-yr record could be summarily dismissed for a 6-month period of struggles, during which doctors have deduced that the employee's behavior is in an altered state and can be corrected with medication and treatment. Medical evidence on the bi-polar disorder clearly indicates that (1) it is likely to be more sever when it presents later in life, and (2) is frequently triggered by some major life event. In this case, the employee is over 40 and lost her father a few months prior to beginning to have problems at work.

My apologies for the long-winded response. The prior feedback is greatly appreciated. I'm looking for any help or suggestions and want to do the right thing. Thanks.
 

cbg

I'm a Northern Girl
In my opinion, it would not be inappropriate for your friend to request a medical leave of absence to stablize her medication. However, in view of the fact that her record of absences and tardiness did not improve, but actually deteriorated, after the initial reprimand, I don't believe the employer would be legally obligated to comply.

There does not appear to be any evidence that the *actual* reason for the termination is due to her disability. She did not mention her disability to the employer until after she had been reprimanded. She did not ask for an accomodation (although an employer could conceivably have interpreted her request for understanding as an accomodation.

Nothing was stopping her from asking the employer for intermittant FMLA. Nothing was stopping her from asking her employer to evaluate her under the ADA and possibly put her on a flexible schedule. But she did nothing until her employer was ready to take action - and THEN she did the things she should have done previously, hoping that the law would save her job for her even though she did nothing herself to save it previously.

In my personal opinion, it would be a smart thing for the employer to give her one more chance; let her have the FMLA time to get stablized, determine whether or not there is an accomodation that might help her, and make whatever arrangements are appropriate. BUT, if I were her employer, that would be the last chance she got. She either started coming in on time (based on whatever arrangement they established as being "on time", whether that was right on the minute or within a specific time frame) or she would be out the door. And I'd stick to it. Neither the ADA nor FMLA was ever intended to be an out for employees to use their disabilities to avoid taking responsibility for their own actions. Nothing in either law gives the employee the right to avoid following attendance and tardiness policies.

However, as I said above, I think under the circumstances the employer could probably make a pretty good case for sticking to the termination. I don't think either side has a slam-dunk case here; either can make a pretty good accouting for their side of the story and there's no way of guessing which way the EEOC would rule on either side.
 

helpsis

Junior Member
I think we will take our chances and request the fmla. She really needs the time for intensive therapy and treatment.

Thanks for your assistance.
 

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