I am a college instructor who has a form of epilepsy where I only have seizures one week a month: during my period. I am fine all other weeks. I have requested an ADA accommodation to work from home during that one week. My employer is trying to make me take FMLA but I don't have a need to have leave. What should I do?
Employment / Labor Attorney
The answer probably depends on multiple factors, such as, would being in your classroom or office be considered an essential function of your job. I would recommend that you contact a local employment attorney for a consultation. Most will do these for free. Good luck.
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Employment / Labor Attorney
I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.
If it is possible for you to perform the main parts of your job – the essential functions – from home, then under the ADA, your employer most likely has to let you do so unless it is an undue (extreme) hardship on the employer. Whether it is possible to work from home or if it is an undue hardship depends on the details. It is hard to believe it is less of a burden on the employer to have you absent than to have you work from home, but I don't know what your job entails.
The ADA applies to employers with at least 15 employees. To be eligible for the protection of the ADA, the employee or applicant must have a disability as defined by the ADA. This definition is “a physical or mental impairment that substantially limits one or more major life activities.” The impairment must be permanent or of long duration, such as one year. Most likely, your condition as you described it meets the definition.
If these requirements are met, the employer may be required to provide reasonable accommodation. Reasonable accommodation may include transferring some non-essential job duties to other employees, providing equipment or devices to enable the employee to do the main functions of the job, allowing extra time off work for things related to the disability, and more. For applicants, the employer may need to provide reasonable accommodation in the form of extra time for qualification tests, better lighting, or any other modification that enables the applicant to apply.
Also, the employer may not treat an employee or applicant differently from other employees because of disability. For example, the employer may not refuse to hire or promote an individual, deny training or otherwise limit job opportunities, and the employer may not fire a person because of disability.
Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.
You should speak with one or more experienced employment law attorneys with whom you can discuss the details of your situation.
Your local Epilepsy Society may have a network of attorneys it can refer you to. These attorneys usually have experience in employment discrimination based on disability. If you cannot find counsel that way, you can find a plaintiffs employment attorney on the National Employment Lawyers Association (NELA) web site www.nela.org. NELA is the largest and most influential bar association in the country for attorneys representing working people. You can search by location and practice area. Also, NELA has affiliates in every state and many cities which are listed on the NELA site. Not all NELA attorneys are named on the web site or affiliate site. This should not influence your selection; attorneys can choose whether or not to purchase a listing in the national directory, and each affiliate has its own rules for listing.
I hope you can resolve your situation and wish you the best.
twitter.com/MikaSpencer *** 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. ***