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Florida: ADAA already recognized disability

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  • Florida: ADAA already recognized disability

    I have been diagnosed with several disorders protected under the ADAA. My dr submitted a request of suggested recommendations to help me, it has been 2 months and my employer has not talked to me about it. I asked for a vacant position and work said I have to post like everyone else even though it would be beneficial b/c of my disability and I asked 2 months prior to them knowing it would go on post. I got turned down for the position even after applying and I was told I was the second most qualified candidate. I saved my emails to HR to prove I requested the accommodations, and that I requested the vacant position prior to them having it on official post and that I am more than qualified for the vacant position and now they are saying that the FMLA paperwork which runs with my ADAA needs more info. Even though EEOC advised my disability is covered even without FMLA paperwork. EEOC and JAN think I should file an official EEOC complaint because they have several circuit court cases that back up time frames for accommodations and action discipline action taken after accommodations requested and also that there are court cases which rule the "special circumstance" rule which may apply to my situation since my employers policy on job postings and policies change frequently, thus creating special circumstances especially with my condition. I still go to work everyday and try my best and usually meet expectations. Occasionally my memory loss will cause a discipline issue and my dr's recommendations are that work is to help me with memory focused tasks / multi-tasking etc.

    My FMLA has already been approved for memory loss, high blood pressure, cognitive dysfunction. The FMLA paperwork to see the psychologist once a week is in limbo right now because they want to know how long my conditions will be lasting for, but yet my ADAA recognization has been approved by HR based on the letter from the Dr requesting accommodations and my conditions.

    I have been diagnosed by my psychotherapist, primary care physician, psychiatrist, cognitive therapist (psychologist), and the Emergency Room during a panic attack.

    I have been diagnosed with psychiatric disabilities: traits of borderline personality disorder, dysthimic disorder, generalized anxiety disorder, social anxiety disorder.

    Physical diagnostics: Cognitive dysfunction, memory loss, high blood pressure, asthma.

  • #2
    The only condition which is automatically covered under the ADA (not ADAA) is HIV/AIDS. Every other condition, without exception, has to be looked at on a case by case basis.

    Do you have a question?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


    • #3
      Originally posted by cbg View Post
      The only condition which is automatically covered under the ADA (not ADAA) is HIV/AIDS. Every other condition, without exception, has to be looked at on a case by case basis.

      Do you have a question?
      True, but considering the recent changes in ADA which expanded the definitions and removed the mitigating measures issue, I think employers are going to need to focus less on questioning if an ee has a disability and focus more on the interactive dialogue component to discuss potential reasonable accomodations.

      Makeshift, you didn't ask any questions, but I'm going to make a stab at what I think you are wanting to know.

      Under the ADA, an employee must be able to perform the essential job functions, with or without reasonable accomodation. I gather from your post you are having difficulty performing your essential job functions without any accomodations, but whether or not there are reasonable accomodations your employer could provide that would allow you to perform the essential job functions remains to be seen. However an employer has an obligation under the ADA to discuss possible reasonable accomodations with an employee, and I gather from your post that so far they have not. Your employer has no obligation to provide you the accomodation you want, but that do have an obligation to discuss various alternatives with the focus on trying to provide a reasonable accomodation that works and is effective.

      An example I often use is when an HR person told me the ee was requesting they buy her a $5000 chair because her doctor said she had a bad lower back and would benefit from having this chair (which by odd coincidence the doctor happened to sell). I suggested they consider other options in discussing this with the ee, such as their right to have a second opinion from a doctor of their choosing or looking at the JAN website for other possible reasonable accomodations, such as buying her a lumbar pillow. It turns out the lumbar pillow (about $20) was proposed, it was effective so problem resolved.

      If your er has been unwilling to discuss any possible accomodations with you in two months, then I question if they are fulfilling their obligations under the ADA, and if it were me I'd want to know why. Possible answers range from simple lack of understanding of their obligations under the law (in which case perhaps some assistance and eduction is in order) to outright defiance of the law (in which case an object lesson may be approrpriate).
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      • #4
        Thanks for the replies, sorry I didnt pose it in a question.

        I was asking is 2 months a long time to enter discussions about possible accommodations? and the vacant position I requested as an accommodation was in the same department, same grade level, same pay, except it has more off the phone hours (which equals less stress on my disabilities, thus allowing me to have better memorization skills and less chance of a panic attack) and work keeps telling me I need to be qualified for the position because they consider it a "step up" with more responsibilities and I think they are playing a smoke and mirrors game because the position is more like a monitoring position, less on the phones and more one on one. As a matter of a fact, my dr recommended more on one on situations for me because I need to personalize contact with co workers and managers. Does my employer have a right to say they consider it a step up even though its the same dept, pay, hours, grade level and refuse me the position even under the definition of "special circumstances?"

        HR met with me today and they admitted they don't know how to accommodate me because multitasking is part of the job. They also understand when I was hired for the position I was perfect for the qualifications but since this past year they made it more difficult, for example 1 mistake on a call you can get disciplined which is hard for me with memory loss. Sometimes I have to go back to a call and update information after the call is ended and work does not allow that any more. Late documentation (even if its 1 minute after the call) is a discipline issue.

        They did tell me today that they understand with ADA if I cannot get the FMLA updated right away they won't hold it against me because they got the letter from the Dr saying I need ongoing treatment and HR understands it is a lifelong issue for me. They also told me if I insisted on the vacant position they would speak to their legal counsel for a second opinion under special circumstances but their corporate office feels it is a "step up" so she was kind of shocked when I asked her to check with legal counsel.

        I have been back and forth between the EEOC, the ADA line, the JAN, and my employer during the last several months and the EEOC and JAN feel I should file an official complaint about the vacant position and I don't understand what the repercussions would be if I filed an official complaint and if it would be a waste of time. It's not that I have any problems with my employers it's just that I want to definitely hold onto my job and I am not giving up even though its become harder for me. I'm in a rock and hard place and don't know what I should do, what would be the right thing for me to do? JAN recommended maybe an extra break and work told me if I want an extra break the Dr has to write another letter requesting it and the reason why. Does this also sound right? Keep in mind they already have a letter from my doctor stating what my disabilities are and on going treatment is necessary.


        • #5
          I can't give you any definite answers because I don't work where you work and don't know everything both you and your employer know about the jobs and your situation. That said, here is some general information:

          1) If you cannot perform the essential functions of the job, even with reasonable accomodations, then you have no protection under ADA.

          2) If removing nonessential functions of the job would enable you to perform the essential job functions effectively, that could be one possible reasonable accomodation.

          3) If allowing you to transfer to another job for which you are qualified and which pays similarly would allow you to perform the essential functions of that job, that could be a possible reasonable accomodation. However, it is not a reasonable accomodation if you are not qualified to perform that job or if that job is in fact a promotion. Whether that other job really is a promotion, like your er claims, or not, I am in no position to say.

          4) You are not entitled to any one specific accomodation nor is the company obligated to give you an accomdation just because your doctor recommended it. What the law requires is that you and the employer enter into what the law calls "an interactive dialogue" in an effort to determine if there are any reasonable accomodations that would allow you to perform the essential functions of the job, and if so, trying to find one that would be effective. The standard a court would likely use would be to judge if both you and the employer negotiated in good faith in an effort to explore possible reasonable accomodations.

          5) If the EEOC is telling you to file a complaint, that is worth considering if you believe your er has not been and won't negotiate in good faith. As to what the repurcussions would be for filing a complaint, I cannot say. But a couple of issues to keep in mind: a) an EEOC investigation can take months, so don't expect this to be resolved quickly, and b) it is in itself a violation of the ADA if your er were to retaliate against you for filing a complaint, and would be separate grounds for a complaint regardless of the merit of your original complaint.

          Sorry I can't give you definite black or white answers, but the law is often gray, your situation sounds rather gray, and I am not there and only have a few pieces of information. You have the right to consult an attorney, who with perhaps access to more information over time may be able to give clearer guidance.
          The only thing spammers are good for is target practice.
          No trees were destroyed in the sending of this message, but a bunch of electrons and phosphors have been a tad inconvenienced.


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