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    Question Can an Employer Treat a Disability as a Performance Issue

    My question involves labor and employment law for the state of: Oregon

    tl;dr - Was never told if my FMLA was approved, company tried to get me to file ADA instead, FMLA leave is inconvenient, manager wrote strange/inappropriate comments on ADA form, might be being groomed to be fired?

    I've worked full-time for my employer for a little over three years. I'm part of a three-person customer service team for a nationwide SaaS company. We handle inbound emails, live chats, and calls from customers. It can vary from incredibly busy to barely any contacts per day given the time of year. I'd like to note early on that I am excellent at my job, hold myself to high standards, and have never fallen behind my teammates in quality or volume of work done. I have had attendance issues in the past (2014) and have also had trouble with non-customer-facing duties (setting out-of-office email messages, noticing when a work tool has stopped working in the background).

    In my time here I've been seeing doctors about once a month for mental health issues. I've been very open with my manager and HR department about that, as well as letting them know of any changes to medication that might affect my work. This past September, symptoms of fatigue that I'd been managing for years suddenly became far worse. I was referred for a sleep study. I would have to titrate off of my everyday mental health medicine, so my manager and I worked out a flexible plan of leave that would make sure that I would only be working when I was cognizant. Since it meant that I would need to be absent for more than three days and required an overnight stay in a medical facility, my HR director sent me FMLA paperwork which I got started on.

    I'd like to go through this as a timeline for the sake of brevity. Please let me know if I can make any clarifications.

    10/24
    - HR lead emails me my FMLA paperwork, with second HR person and direct manager CC'd. (All emails are from HR lead with the same CC'd unless I note otherwise.)

    11/3
    - I request the job description document that the paperwork references but wasn't included.

    11/4
    - I follow up to see if she's able to send it to me.

    11/7
    - HR lead sends the job description. I submit my completed paperwork, highlighting a few sections that I answered but wanted clarification on.

    11/11
    - My psychiatrist faxes my HR lead her paperwork. She fills it out for a six month period of intermittent leave for fatigue, 24-48 hours weekly as needed. Prognosis good.
    - HR lead replies to my email with more information about my questions.

    11/14
    - I receive my official diagnosis of narcolepsy without cataplexy and email HR lead/HR/manager to ask if we need to get new FMLA forms filled out since I'll be working with a second doctor.
    - I discuss the diagnosis with my manager, talk about the meds that we're trying out, and explain that I'll likely continue to experience fatigue attacks until we find the right ones.

    11/16
    - I take my first FMLA absence for a fatigue attack (1.5 hours). I have little to no warning for when these will happen, so I let my manager know that I thought one was going to happen soon and needed to know if I was clear to start taking my FMLA time. "Soon" became "now" and she was still away from her desk so I let her know that I would return ASAP, let my team know that I would be AFK, and logged out of the queues. (I work remotely.) My manager emailed me a screenshot of the chat text asking why I left early, and I explained that I had a fatigue attack which is why I asked to use my FMLA time.

    11/23
    - I take FMLA for a fatigue attack (2.25 hours). During this time our company website experienced an outage, which meant a sharp spike in incoming customer contacts. It was waning by the time I returned.

    11/29
    - I take FMLA for a fatigue attack (1.25 hours, extending my lunch).

    12/1
    - I receive an email from HR lead with second HR and manager CC'd that says, "Due to your recent requests to adjust your schedule to accommodate your medical condition, we have moved into an ADA "Americans with Disabilities Act" request." It included an ADA form to send to my doctor. HR lead asks that it be returned by 12/11. When I open the ADA form it says that I've "requested a reasonable accommodation." I didn't, so I'm concerned. I then get to this:

    Do you have any suggestions regarding possible accommodations to improve job performance?
    Specifically, this employee’s performance issue is that she has notified us, very spur of the moment that she will not be able to work for a few hours, because she needs to sleep. Are there things that can be done that would avoid the employee needing to take unscheduled time off to sleep which would help us to cover customer calls in a timely fashion (perhaps the ability to take a break and walk around the block, have a coffee,or take medication that might make her be more alert during the day?)

    I'm incredibly upset and confused, and worried for so very many reasons:

    • I've told them that I have a diagnosis of narcolepsy which means that I can't control these fatigue attacks. It's not something that can be walked off and caffeine has a negligible effect.
    • My manager already knows that we're trying out medication to help me be alert.
    • I don't understand why they're recommending anything to my doctor, who's already given her requests for my care.
    • Even though this is a form that would go directly to my doctor, it's very clearly written by my manager.
    • This description is a writeup for a performance issue.

    - I have a one-on-one with my manager. I don't bring the ADA form up. She does, and I let her know that I'm having it taken care of. She replies with,

    "So not to pry, but...if you were diagnosed with narcolepsy, but you've always had it, why haven't you needed to take any time off for it until now?"

    I'm incredibly uncomfortable and not sure that she can ask that. I explain as briefly as I can that she's aware that I've been in medical care for mental health issues since before I've been with the company, and that the time off for mental issues that I've taken before was partially this in retrospect. After the meeting ends I want documentation of what was said so I send her a follow-up email saying that I want to explain further in response to her asking me about my prior medical history. She replied that evening thanking me for the information.

    - I call my doctor and tell her about it and that I'm worried. She tells me that they can send the paperwork, but she's not going to sign off on me being disabled. She'll just amend the FMLA paperwork to specify that my leave will be unforeseen.

    12/02
    - I'm feeling uncomfortable and wary, so I start documenting the time off that I've been taking. When I open my FMLA absence entries in our timesheet, I find that all of them are marked "approved FMLA for the time being, may need to adjust if directed otherwise from HR." I email HR lead/HR person/manager to ask if there's anything that my doctor and I missed, or if there's a timeframe for processing FMLA paperwork.

    12/05
    - HR person replies telling me that they haven't yet received my doctor's paperwork.
    - I call my doctor to confirm that she faxed the paperwork, and reply to the email with the date it was sent and the fax number it was sent to.
    - HR person replies to say that is the correct fax number and they did receive the paperwork.
    - I ask if that was all that they needed. HR person replies to say that all they need now is the ADA paperwork from my doctor.

    12/07
    - HR lead emails me to ask if I've given the ADA paperwork to my doctor and if I have a status update. I tell them that I sent it on the 5th (which I didn't; the situation has me too uncomfortable to take action on yet). I also ask if they received my FMLA forms. HR lead replies with, "Yes, we did. Thanks!"
    - I fax the ADA paperwork to my doctor.

    12/08
    - At this point I'm tired of worrying and want some direct answers. I send this email (sorry for the wall of text):

    I double checked the ADA form this morning when I was confirming that it was sent to my doctor. I'm very confused and concerned about some of this. I have a handful of questions:

    - I never heard back about my FMLA after putting in paperwork on the 11/7 and my doctor sending hers on the 11/11. Should I have heard back about that before now? I wasn't told that things were still waiting on her paperwork until 12/5, after I asked on 12/2 about the "approved FMLA for the time being, may need to adjust if directed otherwise from HR" note on my FMLA absences in ADP.

    - The form that I was given to send to my doctor says that I requested a reasonable accommodation under the Americans with Disabilities Act, but I never made that request. Is that supposed to happen?

    - The ADA says that taking my leave is a "performance issue." Was that discussed between others there in Portland? The section sounds like it's a performance write-up rather than accommodation suggestion, citing me for "not being able to cover customer calls in a timely manner" because my needs are "very spur of the moment." I was never told that this was considered a performance issue or that it's being considered as a strike against me.

    - The needs that my doctor told me that she listed vary wildly from what the ADA requests. Since my doctor sent the paperwork on 11/11 and this ADA form was sent to me on 11/30, were the needs outlined by my doctor considered when writing that section? Why was having a cup of coffee or walking it off considered appropriate to recommend to replace the FMLA needs from my doctor? (We're already working on medication, which I've made a point to continually communicate about.)

    Please let me know as soon as possible. I'm hoping that this is just a big miscommunication. Thank you.

    12/09
    - I receive a late reply from HR lead letting me know that she's been out of the office for two days, FMLA can be confusing, and we can discuss it on Monday.
    - I take FMLA for a fatigue attack (1 hour, extending my lunch).

    12/12
    - I take FMLA for a fatigue attack (1/2 hour, extending lunch).
    - I explain to my manager that I'm trying to sleep on my lunch breaks in order to keep from taking unforeseen breaks.

    12/13
    - I take FMLA for the same (.22 hours, extending lunch).

    12/15 - TODAY
    - I receive a reply to my email from HR lead:

    - I never heard back about my FMLA after putting in paperwork on the 11/7 and my doctor sending hers on the 11/11. Should I have heard back about that before now? I wasn't told that things were still waiting on her paperwork until 12/5, after I asked on 12/2 about the "approved FMLA for the time being, may need to adjust if directed otherwise from HR" note on my FMLA absences in ADP.

    So sorry about the confusion. Disregard the ADA form, and your FMLA leave is approved. The ADA form was sent in error. We were hoping to get a sense of whether we need to assign you a separate project with the same pay, or whether something could be done to make your intermittent leave more predictable, so we could let you remain in place. I will get you the formal documentation approving the FMLA leave back to the time of your intial request..

    - The form that I was given to send to my doctor says that I requested a reasonable accommodation under the Americans with Disabilities Act, but I never made that request. Is that supposed to happen?

    The form was sent in error. That said, you may make an ADA request beyond your request for FMLA leave at any point, or at the point you have used up your FMLA. Again, we were just hoping to explore whether we could avoid giving you a different type of project. Because of the number of people on your team, coverage isn’t available at the spur of the moment, and if that happens our customer support is not at acceptable levels.

    - The ADA says that taking my leave is a "performance issue." Was that discussed between others there in MAINOFFICECITY? The section sounds like it's a performance write-up rather than accommodation suggestion, citing me for "not being able to cover customer calls in a timely manner" because my needs are "very spur of the moment." I was never told that this was considered a performance issue or that it's being considered as a strike against me.

    Your intermittent leave needs are not a “performance” issue. COMPANY just has to figure out a way to meet our customer needs and let you take the time you need. That said, you have had a number of performance issues unrelated to taking time off under the intermittent leave. You are aware of the issues which include logging on late, failing to log out of the queue, failure to notice a WORKPROGRAM error. MANAGER and I will be setting up a meeting where we can chat about improvement in those areas in the future. But in response to your question, your taking of leave is not considered a performance issue. Because your needs have been spur of the moment, it does create a challenge for the company in terms of customer service–having enough reps to answer their calls. We are considering giving you another project temporarily while your narcolepsy is getting under control, so that we can still meet customer demand. But that decision has not been made at this point. If you are assigned a different project, it will be at the same pay and you’ll be working the same number of hours.

    - The needs that my doctor told me that she listed vary wildly from what the ADA requests. Since my doctor sent the paperwork on 11/11 and this ADA form was sent to me on 11/30, were the needs outlined by my doctor considered when writing that section? Why was having a cup of coffee or walking it off considered appropriate to recommend to replace the FMLA needs from my doctor? (We're already working on medication, which I've made a point to continually communicate about.)

    The ADA form was sent in error. Please don’t worry about it.

    Please let me know as soon as possible. I'm hoping that this is just a big miscommunication. Thank you.

    Yes, there was a miscommunication. MANAGER and I will be setting up a call with you to make sure we are all on the same path.

    So here I am today, worried and angry and confused. I could be wrong, but thanks to the internet I'm pretty sure that --

    • They only have a set timeframe to confirm or deny my FMLA request, but I never received a confirmation letter (or request for more information, if they needed it).
    • They can't request ADA for me in place of completing my FMLA request.
    • They can't decide to change my position without my agreement if my intermittent leave is unforeseeable.
    • They can't try to brush off the ADA form as "just an error" when it so egregiously sought to seek different instructions from my doctor, especially when they followed up with me several times to see if it was completed or not.
    • They can't brush off the inappropriate comments on the ADA form with "please disregard that."
    • A few hours out of the live queues once a week doesn't establish a "challenge to the company."
    • I am not aware of any of the issues that they've cited as performance issues CURRENTLY being a problem (I searched through email, chat, and timecard history back to my last quarterly review, which did mention the failing to log out of queue but not attendance nor my tools malfunctioning).

    I have a meeting with HR lead and manager on Friday afternoon and I'm just sick about it. I love this job, I love my work, I love my team, but I feel incredibly uncomfortable. I can't tell if this all started as an attempt to use FMLA to move me off of my team, or if they're trying to spin my narcolepsy into a "performance issue" combined with these other things that I've heard nothing about for...I don't even know what reason. I know that my manager has anger management issues has used "You made me angry, so now you should feel bad" as an attempt at mentoring.

    I don't know what to say to them on Friday. I'm not even sure if I need legal help. I just feel uncomfortable and scared. Please reply if you can shed any light on this for me. Thank you.

  2. #2
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    Let’s start with this: you are assuming that the ADA form was sent intentionally with some devious intent behind it. But nothing you’ve wrote clearly suggests that to be the case. People and organizations do make mistakes. It is my observation that, especially in recent years, people tend to jump to the worst assumptions about others when something doesn’t go the way they expect. If someone else has a different recollection of an event, for example, it seems all to common to assume that person is a liar rather than simply having a different memory of it. But most of the time, others are not lying or acting with evil intent. Jumping to the conclusion that they are destroys opportuntities for a good resolution of whatever the issue is.

    The point here is that you appear to be jumping to a conclusion that may not be accurate and then are letting your fears feed off of that. That isn’t going to be helpful or productive for you. So far your company has been rather accommodating of your problem, and more than perhaps they may need to be under the law. So far, I see nothing that indicates a clear violation by the employer of either FMLA or ADA.

    I suggest you not go into that meeting tomorrow with a confrontational or accusatory mindset. Doing that will only result in your manager and HR taking a defensive posture, and that will not be helpful to you. Try to use the meeting to explore what concerns the company has and see if you can reach a mutually satisfactory outcome. You like the job, so don’t say anything out of impulse that may hurt your future at the company. See what comes out of that meeting before you begin to panic. If you can resolve the issues in a cooperative fashion that’ll be a big help to you and you do not want to cut off that possibility.

    If you get fired, reassigned, demoted, or whatever and think the company may have illegally discriminated against you for your disability or retaliated against you for using FMLA leave that you are entitled to get, at that point you will want to see an attorney who litigates FMLA and ADA issues for advice.

  3. #3
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    Jan 2006
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    38,867

    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    I couldn't wade through the entire post. I read some.


    • They can't request ADA for me in place of completing my FMLA request.
      i read where they urged you to seek accommodations under an ada request. One doesn't "request" ADA. Either you qualify as having a disability that falls within the ADA coverage or you don't.
    • They can't decide to change my position without my agreement if my intermittent leave is unforeseeable.
      You are incorrect. Neither FMLA nor ADA demand an employer retain you at your current position if it is onerous for the employer. FMLA requires you be placed in a similar position with equal pay. ADA requires they provide an accommodation, if you request it, to assist you in performing your job. Neither requires they retain you in any position if you cannot fulfill the requirements of the position. Neither requires the employer to lower the standards in place for your job.
    • They can't try to brush off the ADA form as "just an error" when it so egregiously sought to seek different instructions from my doctor, especially when they followed up with me several times to see if it was completed or not.
      Again, an employer cannot request "ADA" for you. Either you are disabled and it fits under ADA or you don't.
    • A few hours out of the live queues once a week doesn't establish a "challenge to the company."
      You don't get to make that call but realistically, unless you are so overstaffed that you really don't need to be there, yes, it is a challenge for the employer to handle your extended breaks, especially on the short notice you expect them to accommodate. While they could schedule for advance notice call offs, your sudden disappearance is quite likelydisruptive to your company's business.
    • I am not aware of any of the issues that they've cited as performance issues CURRENTLY being a problem (I searched through email, chat, and timecard history back to my last quarterly review, which did mention the failing to log out of queue but not attendance nor my tools malfunctioning).
      so you are upset because they are not documenting your deficiencies in some manner you can review them at will?
    • I think your attitude in this situation may be your downfall. I think your narrow fearful attitude has not allowed you to see that if ADA applies, it could provide you with benefits over FMLA (they are not obligated to provide any accommodations under FMLA; only allow time off as the law states). In addition even when ADA applies, FMLA STILL applies. It's not one or the other. Both can be involved concurrently.

  4. #4
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    Massachusetts
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    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    I also could not wade through that entire post but I would like to make one comment.

    FMLA and the ADA are two different laws, with two different criteria, and two different purposes. They are not mutually exclusive. It IS possible to qualify for both. It is not either/or. One does not substitute for the other.

  5. #5

    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    Thank you so much for the much-needed perspective. I'm embarrassed that I threw this entire thing up; it was late and I was panicking. Is it all right if I edit it down and ask some more questions?

  6. #6
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    Jul 2010
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    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    You won't be able to edit it. Posts are not editable after an hour.

  7. #7
    Join Date
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    Massachusetts
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    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    It's perfectly all right for you to ask more questions, though.

  8. #8
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    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    Quote Quoting cbg
    View Post
    It's perfectly all right for you to ask more questions, though.
    Most definitely. I could have done better job on that one.

  9. #9

    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    Thanks. Here's what I was trying to say in that rambling thing.

    - After my company received my FMLA paperwork from my doctor requesting intermittent unscheduled leave once a week, my HR department gave me an ADA application and told me to have it submitted within a week. The application said that my FMLA leave was a performance issue and recommended that my doctor instead have me "take a walk, have a coffee, or take medication." I'm concerned that my manager and HR department tried to make me apply for ADA to circumvent my doctor's FMLA recommendations.

    - My manager doesn't think that I legitimately have narcolepsy. She's asked me to "explain" my medical history in light of my diagnosis. I don't know if she's allowed to do that.

    - I never heard back from my HR department about my FMLA leave until over a month after I submitted it. I asked about it several times before being told that it was approved but I still haven't received any confirmation letter. I'm worried that they didn't intend to process my FMLA request, intending to put me their ADA recommendations instead.

    - I asked why my manager cited my leave as a performance issue and HR told me that the ADA form was sent in error. However, they're now bringing up several other issues (one absolutely legitimate, but the others not). I'm worried that they're trying to justify taking action against me because my manager is irritated by my FMLA leave.

    You're right about me assuming the worst. I appreciate the reality check. I'm still worried about why they won't discuss the ADA with me, and why previously un-discussed performance issues are coming into the conversation about my FMLA leave.

  10. #10

    Default Re: Company Tried to Change FMLA to Ada, Now My Narcolepsy May Be a "Performance Issu

    I'm sorry - ask for coverage under the same what? What isn't automatic?

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