Recourse under ADA, CRA?

[Ice2009]

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

I was rear-ended in a MVA 12/25/01 and have debilitating migraines and other sustained injuries. I work until the pain and exhaustion require additional medical treatment.

I had FMLA leave approved in 2002, 2004 and 2009.

I began working for my former employer in March 2008. I exhausted my 2009 FMLA and returned to work full time. My medical condition worsened again and asked my HR manager if I had options other than waiting for FMLA in 2010.

I explained the circumstances and made it clear I had a chronic medical condition. I provided extensive medical documentation. She stated the extenuating circumstances warranted unpaid medical leave of absence and she removed me from payroll. I also submitted a physician statement certifying my need for medical treatment. Three days later, I receive a termination letter stating the termination was because FMLA was exhausted.

I called the next day to ask why I was placed on unpaid medical leave of absence and then terminated because of FMLA policy. The HR manager stated the company is not obligated to offer and that I should reference the employee handbook.

I stated I would not have been absent had she not indicated verbally and through email that I would be protected. Her response again was to reference the employee handbook. I asked where in the handbook it states an HR manager can provide incorrect information verbally and in writing and, when the information is incorrect, the employee does not have the option to cure the violation. She had no reply and abruptly ended the conversation.

I asked numerous times for reasonable accommodations and was denied.

Accommodation requests: I had tools necessary to perform my essential duties - laptop, cell phone, conference line and VPN access. Requested telecommuting as needed, department transfer, reduced hours, a variable work schedule. All were denied after presenting medical evidence to HR and management.

I've filed with the EEOC, FHRC and my local FELA.

Your opinions are greatly appreciated.

P.S. I wasn't the perfect employee, but I never received a reprimand, had the second highest performance appraisal in my department and have been recognized by management, officers and clients for my performance. So I'm just one notch below perfect.

 

[commentator]

If you are asking for opinions on whether your employer did something wrong or illegal in this termination, my opinion is no. As for other appeals, this will be up to the EEOC and those other Florida boards you're appealing with. Human resource commission and labor board, correct?

When you are fully released by your doctor to return to work again, you can receive unemployment insurance. If I were you, I would go ahead and apply right now, even though you are unable to work, because if you are off work for a significant amount of time without filing, you will lose your eligibility for unemployment based on the fact that you will not have enough base period quarters with wages in them.

So I would go on and apply, stating that my job ended when I ran out of FMLA and was unable to work, and was terminated for that reason. You will set up a claim, which will be good for one year from the filing date, based on your last 18 months of wages.

This claim will not be paid, since you are under a doctor's care and unable to work at present. But later, when you are feeling better and the doctor fully releases you, you can re open the claim, and will very likely be able to draw benefits while looking for another job.

In my opinion, this is about as good as it will get for you. It sounds as though the employer was quite within their rights and followed the procedures they needed to in removing you from the job. They'd be nice if they let you telecommute from home or have flexible hours or something like that, but it doesn't seem to be required by law that they do this.

 

[csi7]

Yes, file the unemployment claim. Filing with the Human Relations, Labor, and EEOC help put the company on notice for their actions. You may obtain information you previously did not have through these agencies. The thing about being under medical care does not eliminate your ability to work full-time, so it is not an elimination factor for unemployment benefits. You are ready and willing and able to work full-time, with accommodations for your disability which is documented through medical care. The accommodations are reasonable requests.

 

[cbg]

The accommodations are reasonable requests.

It is not possible for someone on the outside to say, with certainty, that the accomodations requested are or are not reasonable. We have not even established for certain that the ADA applies, let alone that it would be reasonable to provide home access AND adjust the schedule AND change her department AND reduce her hours. We don't even know what her job entails; how can you possibly confirm what is and is not reasonable?

 

[commentator]

The thing about not being able to work full time without accomodations and being under a doctor's care at the present time does most definitely affect your eligibility for unemployment insurance. You must in most cases be fully released by your doctor, be able and available and actively seeking full time work (if you were working full time when discharged.)

If you are still under a doctor's care and they are saying you would require such and such accomodations in order to work full time...oh well, as I previously advised, go on and file the claim now.

 

[ecmst12]

Either you are physically able to perform your duties or you are not. If your medical documentation stated that you needed a leave of absence, then nothing else would be acceptable. In fact they should not let you come back to work until your doctor releases you.

 

[Ice2009]

If you are asking for opinions on whether your employer did something wrong or illegal in this termination, my opinion is no. As for other appeals, this will be up to the EEOC and those other Florida boards you're appealing with. Human resource commission and labor board, correct?

Thanks for the reply.

I understand without FMLA protection, I can be terminated. What I have issue with is being advised I was placed on and provided notice of unpaid medical leave of absence by an approval authority for absences. This is the reason I requested guidance from HR once my doctors advised how long treatment would last.

In other words, I knew of potential termination, acted under the direction of HR, but was provided materially incorrect information and not allowed to cure the violation.

 

[Ice2009]

The accommodations are reasonable requests.

It is not possible for someone on the outside to say, with certainty, that the accomodations requested are or are not reasonable. We have not even established for certain that the ADA applies, let alone that it would be reasonable to provide home access AND adjust the schedule AND change her department AND reduce her hours. We don't even know what her job entails; how can you possibly confirm what is and is not reasonable?

To clarify: the accommodations were requested separately, not as a combined request.

Since I travelled for business on occasion, I had required equipment to telecommute. I frequently worked from home after business hours and on the weekend. The company also allows telecommuting as a regular (not per accommodation requests) option for other comparable and not comparable positions.

 

[csi7]

Reasonable accommodations are those which an employer can offer any employee to continue to perform their job to standard while under medical care. That is for any employee and any company.

 

[Ice2009]

Reasonable accommodations are those which an employer can offer any employee to continue to perform their job to standard while under medical care. That is for any employee and any company.

Even if none of my requested accommodations were reasonable, at no point did the employer attempt a collaborative effort to determine alternative reasonable accommodations.

 

[ecmst12]

You could not have "cured" the violation. You were medically unable to perform your job, according to your own medical documentation. You couldn't just go back to work.

 

[Ice2009]

You could not have "cured" the violation. You were medically unable to perform your job, according to your own medical documentation. You couldn't just go back to work.

The medical documentation stated that, should I receive treatment, I would require to be out for a specified period of time. It did not state I was required to be on leave; rather, that medical treatment was suggested and the duration of treatment indicated.

That's the reason I asked HR for guidance because I could have waited until next year.

Think of people who go to work with a cold or flu. Some still decide to work despite being sick.

 

[cbg]

Reasonable accommodations are those which an employer can offer any employee to continue to perform their job to standard while under medical care. That is for any employee and any company.

The part you left out is, without undue hardship to the employer. My point is that we cannot say, with the information available to us, that these particular accomodations (a) would have allowed the employee to perform their job to standard and (b) would not have created a hardship.

Not all jobs can be performed from home. Not all jobs can have flexible hours. Not all jobs can be managed on an adjusted schedule. The employer does not have to create a new position for the employee and we do not know if there were any openings in another department for which the employee was qualified. It is NOT POSSIBLE, with the information we have, to say categorically that these accomodations would have been reasonable.

 

[Ice2009]

The part you left out is, without undue hardship to the employer. My point is that we cannot say, with the information available to us, that these particular accomodations (a) would have allowed the employee to perform their job to standard and (b) would not have created a hardship.

Not all jobs can be performed from home. Not all jobs can have flexible hours. Not all jobs can be managed on an adjusted schedule. The employer does not have to create a new position for the employee and we do not know if there were any openings in another department for which the employee was qualified. It is NOT POSSIBLE, with the information we have, to say categorically that these accomodations would have been reasonable.

To provide additional information:
1) My former position can be worked from home - I, and others, have worked from home before transitioning to the office. We also have the option to work from home once every pay period. In addition, new employees in this position are offered the option to work from home first.

2) Flexible hours - the departments hours are from 6 am to 10 pm. I requested the ability to work any range of hours as needed and to provide notice if I would start at, say, 7 am instead of 9:30 am.

3) New position - there were vacancies that were virtually the same for which I applied and was made an offer for two. I was also offered a vacancy that was not similar, but the transfer was not approved.