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  1. #1
    Join Date
    Jun 2018
    Posts
    1

    Default Disability as a Defense to Getting Fired For Lateness and Absences

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

    I was fired for basically I don’t know. I was late a couple of times throughout he year. I told them that I have problems getting up becaue of my disability which is sleep apnea. The schedule suppose to be rotating in which we had 5 team leaders which me being on shift by myself while the other team leads on the other shift. I was working 14 hours shifts by myself. My boss would change the schedule without saying anything then would say you were late. My schedule was from 0600 to 830 pm . Then they switched my schedule the past month from 0500 to 330 pm. Which I was fulltime and they cut my hours weekly because they was trying to push me out anyway. They have been targeting me for a while since I wouldn’t lie for them because of another employee that was wrongfully fired.

    I gave my boss a 3 day notice that I would not be able to make it to work on Thursday because of a va appointment I couldn’t miss ! I only called out one time the whole year I was working ! Then after my appointment I texted her I was on my way to come into work she said no we don’t need you anymore! So I come back to work on Monday and Tuesday nothing was said to me. Then Thursday they call me and tell me hey talked to hr and basically they were discharging me ! I have a fact finding interview tomorrow trying to figure out what to do ! I have the message I text my boss. Is it anything I need to do before this fact finding interview because I think they trying to basically say I was a no call no show or something being that I was late a couple of times

  2. #2
    Join Date
    Jul 2010
    Posts
    8,006

    Default Re: Getting Fired

    So you told them you have sleep apnea. Did you invoke the ADA and request an accommodation? If so, what was it?

  3. #3
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Getting Fired

    Fact-finding interview for what purpose? If they're determined to fire you, they can as long as it's not for any reason not prohibited by law and those are FEW.
    Even if you had a disability, if they contend that your presence at a given time is required (and they're free not to provide you a backup), then they don't have to make that accomodation.

  4. #4
    Join Date
    Jan 2015
    Posts
    1,142

    Default Re: Getting Fired

    To prepare for the fact finding, sit down with your calendar (okay, I guess it'll be your phone these days) and figure out exactly when, how many times in the last year you were late. Did you get any sort of warning, verbal or written after those two episodes? If so, do you have your copies of them?

    Forget the "I couldn't get up because of sleep apnea so I was late x number of times." That's not a good excuse. If your sleep apnea is such that you can't get up on time, then you are virtually unemployable. Don't mention it in unemployment insurance issues, as you have to be able, available and actively seeking other work. You perhaps would have to have an extra loud alarm clock or someone to check on you and make sure you were up on time, but that would be considered accommodations YOU would be expected to make, not something you could expect slack from an employer about. Likewise forget complaining that you were working 14 hour shifts by myself.

    Stick to the one issue. Apparently, they were saying you had violated some sort of attendance policy, or had too many absences or were a no call no show. Do you know of any particular attendance or lateness policy that they had warned you about? In other words, were you specifically told," if you do this again, you will be terminated"? Had you informed them of your expected absence for the appointment in the correct manner? Were you supposed to call in that day, or was it covered by your past conversations with your supervisor?

    Do not go too far into why they are mad at you concerning the issue with the other employee, but you may want to mention that they had been cutting your hours, and you believe they are trying to get rid of you.

    But then emphasize that you had not enough warnings, had no idea that being away from work, having notified them, for a MEDICAL appointment (if that's what it was for, be sure you have documentation of the visit) would result in your termination. Stress that you had given them plenty of notice, had been led to believe that this was all right with them, had no idea it was going to cause you to be terminated. Stress that you went back to work on Monday and Tuesday as usual (after you were told "we don't need you anymore") and were allowed to work as usual. Then you were called on Thursday and discharged you for ???? What was the reason they said you were being terminated?

    Just remember, when filing for unemployment, as when terminating an employee, you do not want to make the claim about too many reasons you were fired, or tell too many extraneous details. In fact, in a Fact Finding hearing, the adjudicator is probably going to ask you most of the questions, you just listen carefully and answer. But prepare, be ready to tell how many warnings (if any) you had received for attendance and tardiness issues, and when you had received them.

    A no-call-no-show is usually a claim killer if they can document it. Did this happen at any time? If they're referring to the day you went to the VA appointment, be sure you can tell exactly when and to whom you gave the prior notifications that you'd not be able to work that Thursday. If you still have it on your phone, mention that, too.

    I re-read here. Being that having a "fact finding" is such a common unemployment insurance term, and not so much used in other HR situations, I quickly assumed that it was an unemployment insurance issue. However, if it is related to unemployment, then you and your employer have severed the relationship and do not any longer have any need to be talking back and forth. If this is, indeed, just a "fact finding" interview with your employer, not involved with unemployment, even so, keep in mind. You can request an accommodation based on a disability, but they are only obliged to give you a reasonable accommodation. "I can be late whenever I don't wake up on time because I've got sleep apnea" is not quite a reasonable accommodation, IMHO.

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