ADA protections for caregivers

[ADA_Questions]

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

I work for as a customer service representative for a major company via a work from home position. It is a "call center" environment where I am required to answer incoming calls from customers. Yesterday I was given notice that I am being let go from my job due to "timeliness" issues and for "other business needs". Here are the issues:

My husband suffers from a mental health ailment that has him disabled according to the Social Security Administration. His condition has led to him being hospitalized numerous times and for me to be named as his payee. I am his sole caregiver at this time due to his long time doctor retiring and our having a difficult time finding a new doctor whom is "good", accepting new patients and will accept our insurance - not all doctors are accepting Medicare or the statewide advantage plan for Medicare D that we have.

A couple of weeks ago, our house was damaged as a result of a nature act. I had to move out of my office for a few days while repairs were conducted. During the time outside of my office, I had to work in a place not as conductive for work than normal due to the requirement of using a wired connection to the Internet. That has been resolved and I am willing to have my office inspected to show this is the case.

I have talked to my supervisor about the timeliness issues in the past. He suggested I get in touch with our HR team to find out if there are any accommodations that could be made for me. I contacted them, they said they would send me some forms to fill out to evaluate my request. I have as of yet to receive the forms.

Anyhow, my questions are the following:

Does what I do for my husband count towards being a caregiver? I am the only other person in the house and we are struggling to find a new doctor for him.

If I can be counted as a caregiver, would a reasonable accommodation be that I be allowed a few minutes from time to time to care for my husband? I am talking about 2 or 3 minutes extra at break as needed and not hours on end.

I know that I am in a "Right to work" state and can be let go for any reason. I just want to know if I have any possibility of stopping being terminated and face other disciplinary action other than termination. What kind of disciplinary action do you think might be appropriate to ask for if they will rescind the termination. The only good news I have is that they are allowing me to work until May 5th if I so desire.

 

[PayrollHRGuy]

The protections that are under the ADA for caregivers an enforced by the EEOC wouldn't really apply in your case. The employer can still expect your to work on time as agreed.

And since, from what you posted, the main problem is finding a new doctor not an actual care issue, I don't see a few more minutes for breaks is really going to help.

You might have been protected by FMLA but you never asked for FMLA leave.

BTW, it is employment-at-will not right to work.

 

[eerelations]

"Right to work" means you cannot be obliged to join a union. I suspect that's not what you meant. I suspect you meant "at-will" which is a concept whereby employers are legally allowed to fire their employees at any time and for any reason except those reasons which are prohibited by law.

The ADA does not provide for accommodations for caregivers, so you're going nowhere with that idea. However, the FMLA does provide for unpaid time off for caregivers in certain situations. To determine if you might be entitled to FML, the following questions need to be answered:

1) Are you an employee or an IC? Are you paid via payroll with taxes deducted?
2) How many employees does your employer have within a 75-mile radius of you?
3) Have you worked at least 1250 hours for this employer during the year leading up to today?

Please note that if you are entitled to FML, your employer is legally prohibited from applying any disciplinary actions to you for taking said leave. So don't ask for it.

If you aren't entitled to FML, then please note that your employer is not legally required to honor your request for disciplinary action.

 

[ADA_Questions]

The protections that are under the ADA for caregivers an enforced by the EEOC wouldn't really apply in your case. The employer can still expect your to work on time as agreed.

And since, from what you posted, the main problem is finding a new doctor not an actual care issue, I don't see a few more minutes for breaks is really going to help.

You might have been protected by FMLA but you never asked for FMLA leave.

BTW, it is employment-at-will not right to work.

I understand what you are saying. I am just wondering if they could offer some flexibility for minutes over when they have set times that I am supposed to be on break but may not be able to do so because I am on a call. I often am late going on break for up to 30 minutes at a time due to being on the phone with a customer that rang a minute before my break is to begin.

I have been leaving messages to call between the times I am on break but it is quite difficult to do under the circumstances as I posted above. I have to accept calls when they come in from a doctor because the need for finding a new doctor to receive care is arguably an actual care issue. Think about it for a minute. Isn't the need to find a professional willing to conduct care a care issue? If you cannot find someone to provide you care, then you are suffering from a medical issue that needs care. Isn't the need for care a care issue? I don't really understand the differences there.

I have contacted our HR team about the issues we were facing. They stated that they would send out an evaluation to be completed. Once the evaluation was complete, the accommodation would be determined. I was in the process of doing the paperwork towards getting FMLA approved.

I am sorry that I didn't distinguish the difference between New Mexico being a "Right to Work" state and the "at-will" employment provision. I am quite upset at what happened and am trying to hold myself together.

 

[PayrollHRGuy]

To help you with FMLA I need the following questions answered.

Have worked for their employer at least 12 months?
Have you worked at least 1,250 hours over the past 12 months?
Do you work at a location where the company employs 50 or more employees within 75 miles.?

 

[ADA_Questions]

To help you with FMLA I need the following questions answered.

Have worked for their employer at least 12 months?
Have you worked at least 1,250 hours over the past 12 months?
Do you work at a location where the company employs 50 or more employees within 75 miles.?

I don't think I will qualify because the answers are 7 months, about 1100 hours and I work from home for a large corporation that has numerous overseas businesses. Because of the nature of working from home, I have no idea if they have 50 or more employees within 75 miles. I will PM you the name of the company because I don't know if it is "smart" to say the name of it here.

 

[cbg]

If you have only worked for the employer for seven months, you do not qualify for FMLA, regardless of who the employer is. The eligibility requirements are set by Federal law.

Neither FMLA nor the ADA requires that they allow you to be tardy, even if it is only a few minutes, because of a family member's illness. There is no law you can invoke that will force the employer to keep you on.

 

[PayrollHRGuy]

I don't think I will qualify because the answers are 7 months, about 1100 hours and I work from home for a large corporation that has numerous overseas businesses. Because of the nature of working from home, I have no idea if they have 50 or more employees within 75 miles. I will PM you the name of the company because I don't know if it is "smart" to say the name of it here.

There is no need to PM me. The fact you can't answer Yes to the first two question make the third moot. You are not protected by FMLA and I really don't think it would allow you to be regularly late back from breaks anyway.

I'm sorry but you need to figure a way to get it together or be prepared to look for another job. Good work at home jobs are hard to find and it sounds as you need a work at home job. I would strongly suggest you so what you have to do to keep this one.

 

[commentator]

Unless she can negotiate and do enough groveling and promising to get HR to reconsider letting her go, keeping the job and having any accommodations made for her are very unlikely. That's almost never going to happen once they have done them officially giving you notice and telling you you've been let go. It is nice of them to allow you to work until the first week in May. You didn't mention whether or not you were an IC.

 

[PayrollHRGuy]

I agree, but in her OP was mentioned both being terminated and her supervisor telling her to contact HR.


To the OP, ADA_Questions, I will not be responding to the your PMs. I can say you have nothing to lose by talking to HR. I will say if you do you should not also be asking for accommodations. Since you asked me what I would do if I were HR for your employer I will say this.

I'd listen to your story and then look at your time history before the recent issues. If your work history was good in the past and there weren't any issues, especially with return from breaks, I'd likely suggest to your supervisor that you be allowed to continue employment with a written warning that any future violations related to breaks or response reliability would result in immediate termination.

In other words there would be no accommodations and if you don't get it together at once you will be gone.

I have no idea how much stroke the HR people at your employer have.

 

[ADA_Questions]

Thank you for all the kindness you have given me. I appreciate it. I am just at a loss of what I can do because I love my job and feel I can do a great job. The "timeliness" issue is logging back into the telephones at 16:10 instead of 15:00. When I do that, I usually have my next break last 13:30 so I can make up the time but that is evidently not enough for the team. They haven't spoken to me about anything other than the late from breaks bit. I am wondering if they just have too many people for the call volume they are getting and looking for any excuse to terminate folks to "right size" the teams.

Under these circumstances, do you see any issue with my qualifying for unemployment? That is my next avenue to pursue if they don't allow me to return to work with severe restrictions such as the next time that it occurs would lead to immediate termination.

Edit: I am not an independent contractor.

 

[cbg]

I just want to reiterate in case it is not clear - any accommodation, including being flexible with break times, is entirely at their discretion. I am not unsympathetic to your situation, don't think that. But the law is not on your side here. They are not obligated to be flexible with you; they are not obligated to rescind your termination; they are not even obligated to honor their promise to let you work till May. If they're willing to work with you, fine, that's good. But they are 100% within their rights to let you go under the fact pattern you have described and if they decide to keep you on, it is out of the goodness of their hearts and not because any law obligates them to.

Your most recent post was not there when I started this. I also work for a call center. Logging into the phones at 16:10 instead of 15:00 is not going to be considered reasonable, even if you make up the time. The calls need to be answered when they come in, not over an hour later. That wouldn't be tolerated where I work, either. It's not that "it's not good enough for the team"; it's that this is simply not acceptable in a call center situation.

You have nothing to lose by applying for unemployment. The worst that can happen is that you're turned down, in which case you are no worse off than if you don't apply in the first place. Poor performance is *generally* not a disqualification for unemployment benefits.

I wish you and your husband the best.

 

[PayrollHRGuy]

I can see you not getting UI but there is no reason not to apply for it. Being an hour and a half late from break is pretty bad. Almost to the level of no call no show.

I wouldn't try the downsizing argument. You have nothing to back it up. And the fact that you got fired for not getting back to work in a timely manner to take calls argues against it.

 

[eerelations]

I can see you not getting UI but there is no reason not to apply for it. Being an hour and a half late from break is pretty bad. Almost to the level of no call no show.

Agree. Logging in to work at 16.10 when you're expected to login at 15.00 means you're late for work by an hour and ten minutes. Most employers will not tolerate that, and yes, it is legal grounds for firing, especially in a non-unionized at-will work environment. And employers are not legally obliged to allow employees who are late for work to make up the lost time during their breaks etc.

 

[commentator]

By all means, file a claim for unemployment if you are sure you are terminated as of May 5th or whenever. File immediately after the last date you work, don't wait until after the last time you are paid, or something like that. A claim is going to be set up based on wages you have earned from every covered employer you've had in the last 18 months. If you've only been working for these people less than a year, and there's no previous employer in that 18 months, it may be a very small claim that you set up. But go on and file it, you have nothing to lose, no cost or downside to doing so. And they'll first determine if you qualify monetarily.

If you do have a monetary claim to apply for, then the issue will be the reason for your separation. And if they (company) says you were fired due to a misconduct reason, your failure to clock in in a timely manner several times, with warnings, that may very well create a situation in which you are unlikely to be approved.

The employer does NOT get to say whether or not you are allowed to draw unemployment benefits, but they do not, as a rule, like to have terminated employees draw claims, because this costs them money. If they can show that they fired you for a valid misconduct reason, then you are disallowed benefits.

Unfortunately, the system will probably not consider your husband's health issues so much as a valid excuse for chronic poor production or lateness in logging in. Though if you could produce a doctor's statement of his having had to receive treatment in a medical emergency that resulted in your last absence or lateness, the one that got you terminated, that might help.

If the employer says you were fired for performance issues, you will need to emphasize that you continued to clock in and did the job to the best of your abilities, according to what they said they wanted and yet the employer was not satisfied with the work you did. Be sure to point out that they have allowed you to continue working past the point when they informed you that they were letting you go. So apparently they were more satisfied with your work than they have indicated. Do emphasize that you always did your best, do not make excuses related to the situation in the rest of your life that kept you from clocking in timely or getting so much work completed. Unemployment is about work related performance. It is not about income support for someone who is having a hard time and really needs it.

You cannot tell. The employer may just decide to say you were let go through no fault of your own. Then you'd be more likely to be approved for unemployment. However, there might possibly be other issues. In order to draw benefits, they want you to make job searches and be willing to state, each week that you file a claim, that you are able, available and actively seeking other work. If, due to your husband's medical conditions, you feel it is necessary to restrict your job seeking to only future "work at home" jobs, that might be a problem. If you feel you would be able to work only certain days hours or schedules, that might be an availability problem.

If approved, as I said, you're possibly looking for a long delay in getting the benefits started, (six to eight weeks at best) a small claim, and then a short number of weeks to draw these benefits. Unemployment insurance is not in any way designed to be any type of disability insurance or to be used when someone is unable to work due to a health issue of their own or being a caregiver for someone else. In the best circumstances, it lasts a maximum of 26 weeks, regardless of whether you have found another job or not.

But all that said, there's really no downside to filing the claim and going through the process. It may work out, and you will not know unless you try it.