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I have an ADA accommodation due to Generalized Anxiety Disorder and Panic Disorder.

London, OH |

After speaking with my boss about 3 weeks or so ago. I was told that one of my accommodations was additional breaks when needed. He also mentioned since we work on a point system, I would not occur any points if I called off,came late, left early, etc due to my condition. All I had to do was call our sick line.

I noticed the day he left for a leave of absence, I have 3.5 points (1 for full shift. .75 and a .25 for coming in late or early. ) I called the sick line each time (the other remaining points are unrelated.)

So, my question since we have a no fault policy, is the policy automatically modified for those who have an ADA accommodation on file with HR? That is how I was understanding the EEOC guidelines.

And if they are not willing to remove points, what do I do next?

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Attorney answers 3

Posted

Are you eligible for FMLA intermittent leave time? That might be the best way around this issue.

Asker

Posted

As far as I know, no.

Posted

I agree- either FMLA intermittent leave or you could hire an attorney on an hourly basis to address these issues with the employer.

Posted

I agree that intermittent FMLA leave could be a solution to this issue if your employer has enough employees and you fulfill the length/hours worked requirements of the FMLA. If your employer retaliates or interferes with your right to FMLA (assuming you are eligible) you may be in a position to take legal action. If you do not qualify for FMLA, you could request an accommodation.

I would also speak with HR regarding the points on your record and FMLA leave.

Regardless, you may want to contact an employment attorney. Many law firms, including my office, provide free consultations.

Best,

Matthew J.P. Coffman

This information above is provided for informational purposes only and should not be construed as legal advice. If you have questions about your individual circumstances, please consult with an attorney. Please feel free to contact the firm. However, contacting the firm does not create an attorney-client relationship.

Asker

Posted

Hi Mr. Coffman. I do have an accommodation on file. It took a lot of back and forth to get it because they wanted more clarification about my accommodation. According to my boss, I was told I that I could use breaks anytime I need to. So, if I am having a panic attack I can step away, try to calm and then get back to work. If it was something that I was unable to work (my panic attacks were very severe, too anxious, etc) then I am to call our sick line and log off of my computer. I discovered last week that I had points for days I missed related to my absence. I’m not in “trouble” yet but I am on the border for a first warning. So, I am unsure if this was a system error or a human error when it came to these points being added. Since he was gone the day I saw them assigned. Also, from an EEOC standpoint, I know the EEOC finds that no fault attendance policies can be discriminatory with people who have disabilities or accommodations on file. Thus, points cannot be assigned if I was out due to my condition. Thats also how I read EEOC vs. Verizon (even though they admitted no fault) and the newest one EEOC vs. Autozone.

Matthew James Porter Coffman

Matthew James Porter Coffman

Posted

By completing FMLA paperwork you would have another avenue of recourse in addition to the ADA should your employer take an "adverse employment action" against you because of your disability. If your employer is permitting points to accumulate then it is failing to accommodate you. An employer has a duty to provide reasonable accommodations which permit an employee to perform the essential functions of their job. You are correct regarding the no fault attendance policies - employers care required to determine whether there are reasonable accommodations on a case by case basis. Broad ranging policies like the ones in those cases do not provide for employers to make the individualized assessment they are required to.

Asker

Posted

Thank you for you answer Mr. Coffman. So, the general consensus of you and all the other attorneys is get FMLA if possible. Taking FMLA out of the equation, with the info I have given you. Assuming they refuse to remove the points, it’s a possible violation of the ADA? And if I understand your last paragraph, if a company has a no fault policy and are bound by ADA and I have an accommodation. Then they can’t pick and choose who gets the attendance accommodation it applies to everybody in the company who has an accommodation. Thus anybody who has to call off, come in late, leave early, ETC, in theory should not be getting points assuming the absence is related to that persons disability.

Matthew James Porter Coffman

Matthew James Porter Coffman

Posted

You should contact an employment attorney to discuss the questions above. Before any attorneys would be comfortable offering legal advice we would need to know all of the details of your employment. Feel free to find an employment attorney through searching this website.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Another option for locating an attorney is the National Employment Lawyers Association. YThe 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 for an attorney 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 there is a good resolution to this situation.

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