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

Asked over 2 years ago - 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.

Additional information

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)

  1. Marilynn Mika Spencer

    Contributor Level 20

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    Answered . 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." http://www.eeoc.gov/policy/docs/accommodation.html, 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... more
  2. David Joseph Rodziewicz

    Contributor Level 8

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

    Unless in a published plan (like an HR manual), the employer gets to determine the method of tracking employee FMLA leave.

    The two most common methods are: a) by calendar year, and b) rolling previous 12 months.

    In my experience, businesses pick the method that works best for their needs.

    Good luck.

    [Here Comes The Disclaimer] Avvo is a great place for people to share information and that's what we are doing... more

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