Medical issue an employer ignores

[ARJ]

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

I work for a hotel, the overnight shift and for the past seven years that I have been working their everyone not just me that has worked the front desk has been allowed to sit once the shift gets slow usually around 2a.m. to 4a.m.

I have scoliosis so sitting down for a few hrs. is necessary for me or I end up with loads of back pain. This has never been a problem before. A new company bought out the old one and they have decided they do not want us to sit down at all during our shift. I was told to bring in a doctors note stating that I could not do prolonged standing and I did and they now almost three weeks after providing this note state that irregardless of the note I am still not allowed to sit during any portion of my shift. I work a straight forty hours so I never took a lunch break now they feel thier solution is for me to take a lunch break. That would be five hours of pay that I would lose per week. Almost a full days loss. I can't afford that nor do I feel I should now be forced to do so. I was hired to work 40 hrs and I agreed to work 40 hrs.

My position is union and I have left them a message but the rep for our dept. has been out in the feild for the past two days and so no one has returned my call yet. I intend to go into the office tomorrow so I can tell them the exactly what is going on because I now have to stand my whole shift and I start to get back pain after a few hrs in. So I kinda need some answers as to my rights quick.

I don't understand why they would tell me to provide a doctors note just to ignore it compeletly. As I said I work the overnight shift and by 2 a. m. the lobby is a ghost town with one or two stragglers coming in and if they come to the desk I stand to help them I do not remain sitting. Is two to two and half hours when there is not one around to see me anyway hurting them? Its surely hurting me.

Can they compelety now choose to ignore my medical condition and force me to lose pay. My contract I believe is for 40 hrs. Are there any state laws about discrimination and an employees medical problems.

Any help you could give would be appreciated.

Thank you
ARJ

 

[cbg]

I have worked the overnight shift on the front desk of a hotel. What reason have they given for requiring you to stand throughout the shift? I'm sure you don't work seven nights a week; is the person who takes the overnight shift on the nights you are off allowed to sit? Are people who work the day and swing shift allowed to sit?

 

[ARJ]

I have worked the overnight shift on the front desk of a hotel. What reason have they given for requiring you to stand throughout the shift? I'm sure you don't work seven nights a week; is the person who takes the overnight shift on the nights you are off allowed to sit? Are people who work the day and swing shift allowed to sit?

The day shift stands but they also have always taken a lunch break. They were hired to do a 35 hr work week. The person who works the two nights I am off also was allowed to sit but now doesn't. He voluntarily began to take lunch so that he could sit. So they are expecting me to do the same too but he is only losing two hrs of pay and that is his choice. They have not given any reason as to why they no longer want to allow this, I personally think its because the person who works the desk on my two days off always falls asleep at the desk. I don't but am suffering for it non the less.

Our managers knew about that but did nothing and one night the Front Office manager came in early and caught him sleeping and then the next week or two they came up with the no chair at the desk rule.

They just redid the lobby at our hotel and we use to sit in the back as their was a door that led to the back office from the front desk and their was a monitor at the desk we sat at that let us see if someone was at the desk. The new company completely renovated the lobby and restaurant and put the bar in the lobby. There is no longer a door from the desk to the back office. There is still a monitor in the back office with a view of the lobby.

 

[cbg]

Here's the deal.

Outside of FMLA, which does not apply here, a doctor's note has no force in law so they are free to disregard the doctor's note. There is no discrimination here because you are not being treated any differently than anyone else.

However, the ADA does require that if you are disabled, you have to be given a reasonable accomodation that will allow you to perform the essential functions of your postion. You do not need to be given the accomodation you request or even the one your employer recommends, only one that works. What you need to do for maximum protection is self-identify yourself as disabled and formally request an accomodation under the ADA, USING THOSE WORDS. The employer will be permitted to require medical information confirming the disability and to enter into an interactive discussion with you as to what accomodations would work. If they come up with a workable accomodation (remember, it does not have to be the one you want, only a workable one) then that's the end of it. If they will not allow an accomodation, THEN you can go to the EEOC or the state version thereof, but you have to give them the opportunity first. Simply giving them a doctor's note or asking to be allowed to sit does not invoke the ADA.

 

[ecmst12]

Being allowed to sit when work is slow certainly sounds like a reasonable accomodation for the disability of scoliosis to me. You can file a complaint with the EEOC if your union can't help you. ADA Home Page - ada.gov - Information and Technical Assistance on the Americans with Disabilities Act has a lot of resources too.

 

[ARJ]

How do I go about self identifying myself as disabled? I'm not looking to get out of work I just don't want to lose any of my pay. I need my entire paycheck.

I will see what the union has to say tomorrow hopefully they can help if not then I will have to try other avenues. Thanks for the link. Who can afford to lose some of thier pay in these times.

 

[cbg]

You go to your manager, or HR, or corporate, or whoever is identified as being responsible for such things, and you say, "I have a disability and I need an accomodation under the ADA".

 

[You Are Guilty]

You go to your manager, or HR, or corporate, or whoever is identified as being responsible for such things, and you say, "I have a disability and I need an accomodation under the ADA".

And follow it up with a simple written note to them saying the same thing.

Let's just say I wouldn't want to be representing your employers when the DHR or HUD comes a-callin'.
http://www.dhr.state.ny.us/how_to_file_a_complaint.html

 

[ARJ]

Thanks for all your help. I will follow up. I met with the union today and he said he would call and speak to them and that I should set up a meeting with the head of Human Resources which I will be doing today. He said he will assist me in anyway possible.

We will see what happens.

 

[cbg]

Your hotel is very different from the one where I worked. I not only had permission to sit IN THE LOBBY, not just at the desk, as long as there were no guests up, but one of the managers suggested that during the deep night I take a ten minute power nap.

Good luck to you. I think your employers are being very unreasonable.

 

[ARJ]

I think they are too, we will see how it plays out. I plan on giving her the written letter tomorrow and I have a meeting set up for Friday morning to speak to her personally.

 

[ARJ]

Update

So I met with her and the Assistant General Manager and the Front Office manager and the HR Director was fine with me taking two hrs to sit. I made the suggestion that I sit at the operators station during the down time and then return to the desk. The Assistant General Manager however wouldn't have it , he claimed they had to speak with the Night Managers first and see if it was ok with them. He tried to come up with every excuse not to give it to me then, he insisted I get a second doctors note that was more specific because the first one wasn't good enough. ( the doctor took offense to that) One of the managers they claimed they needed to consult before I was given approval well...they fired him a few days later and now there is only one night manager on the shift instead of two. This means there is only one person to cover me when I take my break. If someone calls out sick or goes on vacation then guess what I don't get covered and I don't get my two hour break. Lately its been spotty since people have called out and other have been on vacation. SoI have been standing for the whole shift more often than getting the chance to work the operators station.

Now if thats not bad enough the new manager started out relieving me at 2 then it dragged on to 3 then to 4 and last night it was almost 4 30 before she came to relieve me and she wanted me back out 25 min early. She tells me I'm your manager go and get a chair and sit at the desk. I told her the Assistant General Manager was very adamant about me NOT sitting at the desk and there are cameras in the lobby. I see where this is going already. She doesn't want to cover me at the desk. Why do I have to call the manager to tell her to come and cover me, if I don't call I am sure she would just not do it at all. I emailed the HR director two wks ago to tell her that we needed to set a specific time frame in our next meeting to get the details of the accomidation striaght. It took her two weeks to get bakc to me she said she couldn't find the email in her box. ( do I look stupid, its an email box) Her reply was that it has to be left up to the manager. The whole point was for me to be in the back when it was slow that is btwn 2 and 4 am so either relieve me at 2 or the latest 3 not 4 or 4 30. If I leave at 4:30 then I come back to the desk at 6:30 ummm... my shift ends at 7:00. Basically I am still standing for almost my entire shift. What will happen is, when the hotel is full people will start to checkout at 4:00 and according to one of thier loopholes if it gets busy I have to come back to the desk. Which means I will be back out to the desk irregardless of whether or not I had time to give my back a break. So basically I won't be getting my accomidation. It will be happening only when the manager deems it possible. That is not an accomidation.

The other night my back was hurting me so badly. I'm going to have to go back to taking medicine to help relieve the pain. In the last meeting the Assistant General Manager kept saying how he didn't want to set a presidenced and so if someone else gets a disability we have to make an accomidation for them too. Then he asked me to leave the room to talk to the HR Director and was telling her how one particular bellman is always complaining about his back already and that we don't work anyway. We only work if someone comes to the desk. So tha'ts why you don't want me to have it because you feel like I don't work anyway. (I could still hear him through the door as he was speaking loudly) You would think I was asking for a two hour lunch break with pay. I came up with a solution that gives me the two hrs I need while I still work and do a job that needs to be done. He is bieng such a jerk. I'm tired of going through all of this and it should have been settled long before now. To top this all off they wrote me up for leaving my bank key in the lock ( my actual box has my own private lock on it so no one actually had access to it) and it is in full view of the assistant managers desk, and the front office manager, assistant general manager and general managers offices. So its not like anyone could do anything to it anyway. Just three weeks before the bartender left his money out in the open in the storage closet. They didn't write him up for it and his money was less secure than mine. Anyone could have taken his money, no one could get to mine. I know they did that just because I was asking for the accomidation. I'm really sick of them right now, I'm tired of going through all this and I'm tired of being in pain. This is ridiculous. They want it to seem like they are giving me an accomidation but then they create loopholes that make it based on the managers discretion.

What can I do?

Frankly I think I have been compliant enough, I gave all the suggestions their only option was for me to take a lunch break which why should I lose pay because I have a disability if everyone else is making 40 hrs I should make 40 hrs too just like I always have. Then they wanted me to either come in an hour early or stay an hour later to make up for the lunch break. I rejected all of those options as they are not fair for me and I have a life. We decided to go with my idea to work the orperator station while it was slow but they want so many loopholes that it seems like it would be an accomidation in name only. They have the right to deny it to me at any time based on thier own reasons. If that means I have to stand for 8 hrs a day for two weeks then that's what they expect me to do. During all this time of getting second doctors notes and all I was standing even though they had the first doctors note that said I needed to be able to sit for a portion of my shift.It was ignored and so I stood and my condition has reverted back to what it was before. I've been patient and accomidating giving them time to work this out. I work the operators station when the manager feels like she is ready to come to the desk (which she doesn't want to do anyway). The whole point is to prevent me from having pain not let me stand until I do and then let me sit. Its called preventative care. As it stands now there is no plan in place for when someone calls out or goes on vacation for two weeks or longer. If there are back to back vacations. I could be standing for three four weeks straight without a break. That is not an accomidation. Am I being unreasonable? If things don't gets settled at tomorrows meeting should I just file a complaint with the EEOC. I'm tired of being in pain when I clearly do not have to be. This has been going on since April I would think it should have been settled long before now its almost July! ,

 

[pattytx]

What you can do is cut that last response WAY down so that someone will actually read it.

 

[ecmst12]

I think your employer needs some education on the ADA. If you go to the ADA web site, they have a helpline you can call.

 

[LSchmid]

Does your doctor's note state that you have to sit for two hours during your shift? If not, where did the whole "two hours" thing come from?

The idea of the ADA is to make reasonable accomodations for a qualified individual with a disability to perform the essential functions of thier position. It appears that this is what your employer is trying to do.

If, in fact, you have to sit at some point during your shift there is nothing that says the employer needs to pay you during this time. To tell you to take a lunch break and use this time to get the rest you need, that is perfectly reasonable. For you to respond that you expect to get paid during this "rest" time sounds unreasonable. They are allowing you to make up your time by coming in earlier or staying later so you get the 40 hours, you are the one who refuses this option.

The thing to remember is that it is ultimately the employer who determines the reasonableness of the accomodation request. Since you are asking basically for time to sit during your shift, their telling you to do this during a lunch break is perfectly okay.