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ADA Violation?

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What is the name of your state? Michigan


I think my employer acted illegally. I had to take time off of work for three disabilities. I was in the process of extending my leave time through their outside agency (the first time I had extended it), and the agency hadn't processed leave yet, but was doing so.
Although I didn't qualify for FMLA, due to the duration I had worked there, FMLA was turned into my workplace. Even though the agency was supposed to process it, I made sure to turn one in to HR, as well. That way, I have a paper-trail of notifying my employer via the FMLA.
As far as the extension goes, my direct manager wanted to talk with me about leave over a conference call with HR. I told her that I didn't feel comfortable talking about the matter over the phone, and that I preferred email.
I got an email back, saying that they had "attempted to contact me by phone," but were unable. That they had fired me, and that I had taken too much time off of work. I emailed them back, saying I attempted to communicate with them through email, but was refused. My first appeal to reverse the decision was refused by an employment practices person.
What's odd to me is, isn't this a smoking gun? I have emails proving that I was trying to communicate with them. I have emails proving that medical leave was a factor in the decision making process to fire me. I even gave them the opportunity to essentially settle for $0, and they refused it.
The only thing that I can think, is that they're misinformed on two fronts. The first being that they don't understand that the ADA is a protection in the absence of FMLA, the second being that it is an extension of the FMLA. The second thing is, my boss lied that she wasn't able to communicate with me, and the hiring practices person probably believes the boss. However, I have repeated having emails to back up my case.
Unless my understanding of the ADA is wrong, and their's is right, this doesn't make sense to me. It's like they're walking into a lawsuit. Or am I missing something?
 


Zigner

Senior Member, Non-Attorney
Why do you believe you're entitled to time off under ADA? Did you specifically ask for accommodations under ADA?
 

Taxing Matters

Overtaxed Member
The only thing that I can think, is that they're misinformed on two fronts. The first being that they don't understand that the ADA is a protection in the absence of FMLA, the second being that it is an extension of the FMLA.
Your understanding that the ADA is an extension of the ADA or that it is meant to act in the absence of the ADA is wrong. The FMLA and the ADA are two separate laws and they address different situations.

The FMLA is a law that guarantees you up to 12 weeks unpaid leave if your employer is a covered employer under the Act, you meet the requirements for time worked for your employer, and you or your family member have a health condition that requires time off to care for.

The ADA is not a leave benefit law. The ADA's primary purpose is to prohibit discrimination by the employer against employees who have a disability and to require an employer to provide a reasonable accommodation to help the employee overcome difficulties caused by a disability to give the employee the opportunity to do the essential parts of his/her job at the required level of performance. While in some cases providing some time off of work may be a reasonable accommodation that the employer must provide, that is not very common. It is especially uncommon when the amount of time needed is extensive. One of the reasons for this is that it can be an undue hardship on the employer to keep having an employee out of work a lot. While the ADA can provide some protection where the FMLA does not, the two laws are not linked.

Even if the leave might be a reasonable accommodation in your circumstance, you need to inform the employer that you need that accommodation. Simply putting in a FMLA request might not be sufficient to do that. Again, the two laws are separate so it's not automatically the case that asking for FMLA leave would put the employer on notice that you are seeking a reasonable accommodation. While the words "reasonable accommodation" are not strictly speaking necessary (though it helps), you do have to make it clear to the employer that is what you are seeking.

The EEOC explains the rules here: Employer-Provided Leave and the Americans with Disabilities Act

You might want to meet with a lawyer who litigates ADA employment claims against employers to see if you have something to pursue against the employer here. Just understand that when it comes to employees taking time off, the employer is almost certainly going to defend that it would be an undue hardship to have you taking all that time off, along with any other defenses it may have. So this is not a situation that is as clear cut as you believe it to be.
 

cbg

I'm a Northern Girl
If you do not qualify for FMLA, it doesn't matter what you turn in to HR; you're not entitled to FMLA. And as Tax explains above, the ADA is not a leave law and does not automatically provide you with leave if you aren't able to get FMLA. If you don't qualify for FMLA, there is NO leave time that you are guaranteed by law.
 
Your understanding that the ADA is an extension of the ADA or that it is meant to act in the absence of the ADA is wrong. The FMLA and the ADA are two separate laws and they address different situations.

The FMLA is a law that guarantees you up to 12 weeks unpaid leave if your employer is a covered employer under the Act, you meet the requirements for time worked for your employer, and you or your family member have a health condition that requires time off to care for.

The ADA is not a leave benefit law. The ADA's primary purpose is to prohibit discrimination by the employer against employees who have a disability and to require an employer to provide a reasonable accommodation to help the employee overcome difficulties caused by a disability to give the employee the opportunity to do the essential parts of his/her job at the required level of performance. While in some cases providing some time off of work may be a reasonable accommodation that the employer must provide, that is not very common. It is especially uncommon when the amount of time needed is extensive. One of the reasons for this is that it can be an undue hardship on the employer to keep having an employee out of work a lot. While the ADA can provide some protection where the FMLA does not, the two laws are not linked.

Even if the leave might be a reasonable accommodation in your circumstance, you need to inform the employer that you need that accommodation. Simply putting in a FMLA request might not be sufficient to do that. Again, the two laws are separate so it's not automatically the case that asking for FMLA leave would put the employer on notice that you are seeking a reasonable accommodation. While the words "reasonable accommodation" are not strictly speaking necessary (though it helps), you do have to make it clear to the employer that is what you are seeking.

The EEOC explains the rules here: Employer-Provided Leave and the Americans with Disabilities Act

You might want to meet with a lawyer who litigates ADA employment claims against employers to see if you have something to pursue against the employer here. Just understand that when it comes to employees taking time off, the employer is almost certainly going to defend that it would be an undue hardship to have you taking all that time off, along with any other defenses it may have. So this is not a situation that is as clear cut as you believe it to be.
Hi, thank you, I wonder if the violation is that they would not talk to me about extending my leave.
 

cbg

I'm a Northern Girl
They're not required to extend your leave.

Did you, specifically, in so many words, ask for additional leave as an accommodation of the ADA? Using those words, and specifically invoking the ADA?
 
Why do you believe you're entitled to time off under ADA? Did you specifically ask for accommodations under ADA?
Yes, I have disabilities that fall under ADA and specifically asked for time off to deal with these. They were recorded in the FMLA form I turned in, which I have an email of.
 

cbg

I'm a Northern Girl
No, that's not what I meant. I don't mean, "I have xyz disability and I need time off". I mean, did you at any time use the words, "I have xyz disabilities and as a result I am requesting an accommodation under the ADA of additional time off:"
 
They're not required to extend your leave.

Did you, specifically, in so many words, ask for additional leave as an accommodation of the ADA? Using those words, and specifically invoking the ADA?
Thanks, I'm not sure. It may have been implied to some degree, because I had previously written about having a disability and named the disability.
 
No, that's not what I meant. I don't mean, "I have xyz disability and I need time off". I mean, did you at any time use the words, "I have xyz disabilities and as a result I am requesting an accommodation under the ADA of additional time off:"
Not in that specific wording for the extension. Do you have to state that it's under the ADA? My doctor originally turned in a note to their agency, documenting that I had certain disabilities. I was granted disability by the agency and leave by the employer. I was again processing disability extension and leave through this agency. There was not yet enough information to provide the employer with a return date, as this was a conversation I was having with the agency. The agency was not at that point to give me information that I could give to my employer.
 
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justalayman

Senior Member
As cbg stated, forget about fmla. If you were not eligible for fmla, it has nothing to do with your situation.

So then regarding the ADA.

To be provided an accommodation for an ADA acknkowledged disability, you have to request an accommodation based upon the disability. You need to understand more about the ada though. While you can seek a specific accommodation or suggest a specific accommodation, it is up to your employer to determine the actual accommodation provided.

Also, the employer is only required to provide an accommodation that does not cause them an undue hardship but allows you to perform your job. Time off work doesn’t generally meet such requirements since it is not allowing you to perform your duties but to escape doing them. You being off work will also often causes the employer an undue hardship as replacing you during your time off is often unduly burdensome.


So, how would time off allow you to perform your work duties?

Would you being off work create a condition for the employer that would be considered a hardship?


Here is a q and a from the eeoc on the matter. Read it well.


 

cbg

I'm a Northern Girl
Yes, you have to make it clear that you are requesting an accommodation under the ADA. As Tax indicated above, FMLA and the ADA are two different laws with two different purposes. While it is the employer's responsibility to raise the issue of FMLA when you qualify for it it is the employee's responsibility to raise the issue of the ADA. It is not the employer's responsibility to assume that you will need it or what you will need.

Even then, you are not guaranteed the accommodation you want or even the one that the doctor recommends; only one that works. And in many if not most cases, time off is the last accommodation considered since the purpose of the ADA is to keep you on the job working. A short leave can be a reasonable accommodation but only if it will allow you to return to the job and complete all the essential function of your position. The ADA does n.not guarantee you leave time under any consideration.

If you never specifically requested an accommodation, the chances that you've got a violation go way down.
 
Sounds like a long-shot then. Maybe this is the wrong place to ask this, but at this point, could I qualify for state disability or unemployment? Although I wasn't working at the new place that long, I had worked at another place before it for three years that was sold. Of course, I'd probably want to get a lawyer for this. It's not something I want to be on forever, just something that I need until my symptoms are under control.
 

cbg

I'm a Northern Girl
Michigan does not have a state disability program; there are only five states that do. In order to qualify for unemployment you need to be able to work, actively looking for work and available to accept work if offered. When you reach the point, medically, where you are able to meet those qualifications I don't see any reason you shouldn't qualify, but until that time you'd have to wait.
 
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