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  1. #11
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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

    As I mentioned above, FMLA and the ADA are two different laws with two different criteria and two different reasons for existence.

    FMLA is leave time. Nothing about FMLA is anything but leave, but not all leave is FMLA. Much of the criteria is black and white; either your employer has over 50 employees within 75 miles of your location, or he doesn't. Either you've worked there for 12 months total, or you haven't. Either you've worked 1,250 hours in the 12 months immediately preceding your leave, or you haven't. But there can be some grey relating to the fourth criteria; you or a qualified beneficiary must have a serious health condition as defined by the statute. When in doubt, the final say rests with the doctor. However, the responsibility to initiate FMLA leave lies with the employer - if the employer THINKS that a condition might trigger FMLA, they are required to start the process.

    The ADA is not leave time per se, although it can be leave time. The ADA requires that an employer provide a reasonable accommodation when the employee has a qualifying disability. But unlike FMLA, where the employer is responsible for starting the process, with the ADA you are. They are not required to assume you need an accommodation, and some HR folks are taught that making that assumption is, in itself, a form of illegal discrimination. (How dare you assume I can't do my job) YOU need to self-identify as disabled and request the accommodation. They are NOT required to give you the accommodation you request or even the one your doctor recommends; only one that works.

    Speaking as a long time HR person, it does not sound to me as if your employer is deliberately trying to circumvent the law. It sounds as if they have realized that you may need both laws invoked and are doing their best to do so. The law does not prohibit them from initiating ADA protections; it just does not require them to. I agree they sound confused, yes, but trying to walk the line between both these laws is confusing to most HR offices. After all, if they grant you the leave your doctor has recommended, what difference does it make if you get it as FMLA or as an ADA accommodation? Candidly, it would work more to your advantage to have it as an ADA accommodation since FMLA has a statutory, finite limit to it and the ADA does not. Both are protected under the law. So why is the idea of being given an ADA accommodation so threatening?

  2. #12

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

    Thank you so much for your insight! I'm not at all opposed to an ADA accommodation. Rather I'm concerned about how it was requested; I was told that I had to submit ADA paperwork, and my manager wrote it up as a disciplinary strike. Her recommendations varied wildly from what my doctor told the company and reflected what she thought would be appropriate if I was just being "lazy," even though the FMLA paperwork documented my genuine narcolepsy.

    If there had been a real request for accommodation or for my doctor's input then I wouldn't be concerned at all.

  3. #13
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    Massachusetts
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    Default Re: Can an Employer Treat a Disability as a Performance Issue

    I am really having a hard time picturing an FMLA request as a discipline. What exactly did she write?

  4. #14
    Join Date
    Jan 2006
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    Default Re: Can an Employer Treat a Disability as a Performance Issue

    You have to make a request for accommodation under ADA. I'm still not clear what you say they required you to "submit Ada paperwork".

    As to the suggestions of a cup of coffee, short walk, etc; I suspect they are attempting to discover an accomodation that actually allows you to invoke the ADA protections. As it stands, I suspect, they are not willing to simply have you disappear from your job assignment without prior notice or warning as that is untenanable for their work situation. It really looks to me like they are actually trying to help you stay in the position you currently are. If the immediate and disappearance from your duty station is untenable for their work flow, they do have the rights that would result in negative actions against you. The laws are written to protect the employee but not at all costs to the employer.

  5. #15
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    Massachusetts
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    Default Re: Can an Employer Treat a Disability as a Performance Issue

    Agree with jk overall. Regardless of whether it's FMLA or the ADA, having you taking unscheduled leave at no notice is going to be awkward at best for them and possibly not considered reasonable under the ADA. It really does sound from someone not personally involved that they are trying to work with you. But now that I'm posting from my computer and not my tablet, let me expand on my post above. I'm still very confused about what you're saying regarding your manager "writing it up as a disciplinary strike". Regardless again of whether it's FMLA or the ADA, that is not making any sense to me at all. Redacting names, can you please post here EXACTLY what she wrote?

  6. #16

    Default Re: Can an Employer Treat a Disability as a Performance Issue

    Sorry, yes!

    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 gleaned that she was writing it up as a disciplinary issue because it was prefaced with "This employee's performance issue is" etc etc. I was originally concerned because she'd received my doctor's original recommendations and didn't acknowledge them. I also received a much later reply telling me that the ADA form was only to see if they ought to move me to another temporary assignment (same pay/hours/etc). The accommodations that she asked for on that ADA form don't mention that at all, which is another reason why I was concerned.

    I think that I'm being overly worried. My manager has a history of issues with anger management and has been reactionary in the past. I think that was affecting how I looked at all of this too much.

  7. #17
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    Massachusetts
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    Default Re: Can an Employer Treat a Disability as a Performance Issue

    Okay, I am absolutely not seeing this as being a disciplinary issue. I am seeing this as their trying to find a solution for you that does NOT involve having you take unscheduled leave at a moment's notice, which as I said above would be problematic for any employer, regardless of which law you class it under.

    I think you're overthinking this a trifle.

  8. #18

    Default Re: Can an Employer Treat a Disability as a Performance Issue

    It is confirmed that I was being paranoid and neurotic. Thank you for putting up with me, everyone. My company is giving me a temporary flexible shift doing work that I really excel at. I appreciate all of your perspective and advice.

  9. #19
    Join Date
    Jan 2006
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    Default Re: Can an Employer Treat a Disability as a Performance Issue

    Glad to hear it. As I said, it really sounded like they were actually trying to help you all along.

  10. #20
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: Can an Employer Treat a Disability as a Performance Issue

    Excellent. Best of luck

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