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Am I a victim of retaliation/discrimination for my protected disability?

Tampa, FL |

Several things are ongoing, listing as short as possible, I have a recognized ADAAA disability and currently receiving accommodations. My dr. filled out the employers req paperwork and put condition indefinite for lifetime, however, employer wants the same note every 90 days to honor accommodations. Also, my employer tells me I have so much FMLA time left, then says they made a mistake and take time away, then they post adjustments on my paycheck docking time. Asked for FML logs, was told I didnt need to see em b/c they are always adjusting them. I proved one of their mistakes where they owe me time from a timesheet, 2 weeks ago and no effort to correct. Meantime, if I am out of FML(b/c of their error) even with ADAAA disability they are counting against dependability.

wanted to note: I have a neuro disorder. My current ratings are up to goal, usually one of the highest rated in dept. Should i pursue complaint with EEOC or Dept of Labor? I have been told by employer that they do not have time to tell me how much fmla falls off per day, they'll tell me by the month and i'll have to figure out which days.

Attorney Answers 2


I am a California attorney and not eligible to give legal advice in your state. My comments are for information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT PROVIDE SIMILAR OR GREATER PROTECTION. If I refer to your state's laws, that only means I did a quick Internet search and found something that appeared relevant. You should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.

If your employer already has medical documentation that you have a permanent disability, the employer MAY NOT require you to provide additional medical documentation to confirm that you have a disability. The EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act states: "An employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.", Requesting Reasonable Accommodation, No. 8.

An employer MAY ask for medical documentation to support a repeated request for reasonable accommodation under certain circumstances. You don't state what you disability is so it's hard to be specific. When the need for reasonable accommodation is not obvious, or when the need comes and goes, the employer may ask for additional documentation to support a new request for reasonable accommodation. But if the need for reasonable accommodation is continuous, the employer may not ask the employee to provide periodic medical support. This is discussed in the same link, same section, I gave you above, by this example:

"Example B: One year ago, an employer learned that an employee had bipolar disorder after he requested a reasonable accommodation. The documentation provided at that time from the employee's psychiatrist indicated that this was a permanent condition which would always involve periods in which the disability would remit and then intensify. The psychiatrist's letter explained that during periods when the condition flared up, the person's manic moods or depressive episodes could be severe enough to create serious problems for the individual in caring for himself or working, and that medication controlled the frequency and severity of these episodes."

"Now, one year later, the employee again requests a reasonable accommodation related to his bipolar disorder. Under these facts, the employer may ask for reasonable documentation on the need for the accommodation (if the need is not obvious), but it cannot ask for documentation that the person has an ADA disability. The medical information provided one year ago established the existence of a long-term impairment that substantially limits a major life activity."

My interpretation of the Guidance is that the employer may ask for medical documentation of your need for reasonable accommodation if there is a business-related reason, such as a change in whether you need accommodation, but may not ask merely because 90 days or any period of time has passed.

(continued in Comment below)

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Marilynn Mika Spencer

Marilynn Mika Spencer


(continued from Answer above) I don't know whether the employer is required to keep track of the amount of FMLA time an employee has used or has remaining. Hopefully another attorney will post a response. Note that the Department of Labor, which enforces the FMLA, states: "In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee's return to work." Please look at my Avvo guide on the ADA: Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA): Employment law is complicated and fact specific. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is, and you can search for attorneys by location and practice area. Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing. I hope you can resolve your situation and wish you the best.


Thanks to our colleague above for a detailed, thoughtful answer (and NELA sales pitch ;

[Here Comes The Disclaimer] Avvo is a great place for people to share information and that's what we are doing here. Nothing in the answer above should be construed as retaining an attorney or receiving the benefit of retained counsel. We encourage you to retain an attorney and dig into you particular concerns. I urge you to consult another lawyer if you wish a second opinion. Time limitations may affect your rights to pursue a claim; therefore, you should act promptly in consulting another lawyer, or otherwise pursuing your claim. That said, thanks for reading this far and best of luck in all you do.

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