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ADA and Discrimination

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YamiTehGreat

New member
New York City

Is my employer completely in the wrong or is it just me?

To start I have a primary hypersomnia sleep disorder called Narcolepsy which is severe enough to qualify as an ADA disability. I also want to note that I am a full-time student at a CUNY since it will be relevant later.

The problem started a year after I was hired. I working early morning shifts for a while and I started being late here and there. It was rare and only by 3-5 minutes when it did happen. In a three month period I was late 3 times all by under 5 minutes and received a write up for attendance. I found this to be a little excessive but didn't feel it justified telling them about my disability since it had not been a problem before.

Over the next two months I was late on 2 occasions. once by less than 5 minutes and once by 10 minutes and received a second write up.

It was at this point where I felt that since the policy was so strict and there was no grace period, I informed management about my sleep disorder and brought in paperwork the following day. The paperwork I gave them was documentation by the doctor who diagnosed me stating my diagnosis, treatment notes and a short description of the symptoms. The document was a little dated (couple years old) but Narcolepsy is a lifelong disorder and no further documentation should have been required for it to atleast be known.

They rejected it saying they wanted something more current. I told them I couldn't give them a more current document because I am no longer a patient with that doctor. In fact I was in the process of looking for a specialist which had been difficult.

In the meantime, as time went on while they did not fire me for my attendance they did--- cut my hours, refused to give me raises despite meeting expectations in every other aspect of my job, took away responsibilities which I excelled at (I was an order writer and received numerous complements on the management of my section) and generally gave me a hard time such as speaking to me in a way to make me feel ashamed about my attendance issues.

The financial burden and added stress exasperated my condition which ended up causing me to become chronically late.

I did eventually find a specialist but I needed to redo testing (which ended up being inconclusive and needs to be re-administered). The whole process took several months. I was given a temporary diagnosis of idiopathic hypersomnia so that I can do a trial of modafinil.

Because of my college schedule I can only work until 1pm. This is not by choice. I am deep into my pre-med degree and have no options for classes. I am in school for the rest of the day with my classes ending around 10pm. I was instructed by my new doctor to fix my work schedule since it requires me to be up around 3:30am. Since I get home around 11pm I can only get 3-4 hours of sleep which is also exasperating my symptoms.

For weeks I tried to get my schedule changed so that I can come in 2-3 hours later. I explained this to my managers that this was recommended by the doctor. I also explained how the constant sleep deprivation was worsening my symptoms and that I cant be sleep deprived while taking the medication (this started a month before I received the first prescription). I was told to update my schedule in the work system which I did.

After that I saw a decrease from 4 days to just one day. So, I changed it back. I dealt with a couple of weeks of not having enough money to live. I didn't even have enough money to put gas in my car to get to work.

I had to fight for my hours back which included fighting for permission to come in on days I was not scheduled for.

I started my new medication and was starting to see positive results. I was still coming in off schedule (so I went in later than my usual time like I wanted) and was starting to see a good change.

I got put back on the schedule at my regular time. I kept taking the medication and had a severe adverse reaction due to the sleep deprivation + the medication which I told them could happen. I almost got into two bad automobile accidents (at first I didn't realize that the medication was causing me not to drive correctly) and spent the whole next day with severe dizziness, disorientation and confusion. I had to suspend doing all my school work until the symptoms subsided. (Lost 3 days of productivity)

The next time I was at work I told my boss about the medication and what I experienced and said if my schedule cant be adjusted then I need to stop taking the medication because its dangerous.

He said that if I stop my medication and continue to have attendance issues then ill be terminated.


I cannot take the medication while sleep deprived. This is not a choice. Its either I stay on my early shift and stop the medication or keep taking the medication and have an adjusted work schedule. When I told him he wasn't leaving me any options he said that I should either quit school or take a break from it which is 1. very distressing to me 2. unrealistic, im going to be applying to medical school and stopping for any length of time could hurt my chances 3. unrealistic because then my school loans will kick in creating another financial burden.

I was also made to feel like I was demanding and ungrateful.

Is this legally discrimination at this point?
 


quincy

Senior Member
My great uncle had narcolepsy. I am admittedly surprised that you are permitted to drive. My uncle would fall asleep without warning, once doing so when standing up raking his lawn. Driving a car would have been dangerous for everyone.

Your employer was right to request a recent diagnosis from your current physician. Until you provided the necessary medical documentation, your attendance issues could not be addressed by your employer or excused by your disorder.

In addition, if you could not commit to a work schedule necessary for employment, even with modifications (shortened or adjusted hours), the employer has cause to terminate your employment.

With that said, you can review all facts with an attorney in your area to see if the facts support a claim.

As a note, my great uncle was an accomplished attorney and court administrator. His disorder did not prevent him from being extremely successful. It just took him longer than it otherwise might have had he not had narcolepsy.
 

YamiTehGreat

New member
Thanks for you response. Driving is a big concern for me and I do have a considerably long commute. There are times when I know I cannot drive and times when I have to pull over.

I was wondering about the documentation because I feel the documentation I provided was sufficient. This is what it says on the eeoc website

" An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested."

which was followed by this example

"one year later, the employee again requests a reasonable accommodation related to his bipolar disorder. Under these facts, the employer may ask for reasonable documentation on the need for the accommodation (if the need is not obvious), but it cannot ask for documentation that the person has an ADA disability. The medical information provided one year ago established the existence of a long-term impairment that substantially limits a major life activity."

The documentation I provided clearly states what my disorder was and that it was life-long therefore I should not have to give them anything else to prove that I had narcolepsy. The document I gave them was already my diagnosis.

I can commit to a modified schedule. Its what my new doctor recommended. I asked that my shift be adjusted so that I come in later in the day (8am instead of 5am) (my job is retail btw) and the issue is that they wont modify my schedule. I'm allowed to change my availability but then my hours are cut to near non-existence which is very unfair. Especially since they grant modified schedules to other employers on a case-by-case basis.
 

quincy

Senior Member
Thanks for you response. Driving is a big concern for me and I do have a considerably long commute. There are times when I know I cannot drive and times when I have to pull over.

I was wondering about the documentation because I feel the documentation I provided was sufficient. This is what it says on the eeoc website

" An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested."

which was followed by this example

"one year later, the employee again requests a reasonable accommodation related to his bipolar disorder. Under these facts, the employer may ask for reasonable documentation on the need for the accommodation (if the need is not obvious), but it cannot ask for documentation that the person has an ADA disability. The medical information provided one year ago established the existence of a long-term impairment that substantially limits a major life activity."

The documentation I provided clearly states what my disorder was and that it was life-long therefore I should not have to give them anything else to prove that I had narcolepsy. The document I gave them was already my diagnosis.

I can commit to a modified schedule. Its what my new doctor recommended. I asked that my shift be adjusted so that I come in later in the day (8am instead of 5am) (my job is retail btw) and the issue is that they wont modify my schedule. I'm allowed to change my availability but then my hours are cut to near non-existence which is very unfair. Especially since they grant modified schedules to other employers on a case-by-case basis.
You probably should speak to an attorney in your area.

You might find some help through The Narcolepsy Network organization (included for informational purposes and not an endorsement):
https://narcolepsynetwork.org/resources/for-employees/

And here is a link to a case that you might find educational (Spurling v. C&M Fine Pack, Inc, 739F.3d 1055; 7th Cir 2014):
https://casetext.com/case/spurling-v-cm-fine-pack-inc

In the meantime, you might ask your employer once again for an adjusted schedule or perhaps “nap” breaks.

Good luck.
 
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FlyingRon

Senior Member
Understand that ADA doesn't have to require the employer to not accept you being able to do the job.

First off, being a full-time student is NOT a disability that requires accommodation. The employer is free to ask you to work when you have classes scheduled. Second, if the job requires attendance at certain times, there's no requirement for the employer to have to accommodate you working otherwise.

You should, as Q suggested, talk to an attorney, but this is not an open and shut case.
 

quincy

Senior Member
YamiTehGreat will need to show that a reasonable accommodation can be made by the employer that allows Yami to do the job without adversely affecting the business’s operations or finances.

An employer cannot take adverse action against an employee solely because the employee has a disability but the employer does not have to retain any employee who cannot carry out the essential functions of the job.
 

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