Can they legally make me do this? With my disease , type 1 diabetes, i do this a few times a week.
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.
Poppycock. If you are eligible for FMLA, then your employer has at least 50 employees; that means it must comply with the federal Americans with Disabilities Act (ADA), which applies to employers with 15 or more employees. Under the ADA, an employer must provide reasonable accommodation to an employee with a disability, as long as the reasonable accommodation is not an undue hardship on the employer.
The ADA defines "disability" very broadly. From even your brief description, you almost certainly meet the definition under the ADA.
The ADA defines "undue hardship" very narrowly. In other words, the reasonable accommodation must be extraordinarily difficult for the employer to provide before it would be an undue hardship. The most likely candidate for undue hardship would be a very expensive accommodation.
In your case, perhaps all that is needed is a ten-minute break so you can eat something. This would be something the employer most likely has to allow and will not be able to dock you for. But even if, for some reason, the employer were allowed to dock you, it would only be for the amount of time you took AND it could not count against your FMLA allotment.
If you have a desk job, it is likely an accommodation that allowed you to snack at the desk would be all that is required, and that would not require any break at all.
Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment.
Please see my Avvo guide on reasonable accommodation for people with OCD: http://www.avvo.com/legal-guides/ugc/reasonable-accommodation-for-people-with-obsessive-compulsive-disorder. I know OCD is not your issue, but the guide gives an overview of the reasonable accommodation process.
Keep a log of everything related to your efforts to obtain what you need from your employer. Record your discussions, requests, any comments, adverse actions or other funny business. Write down the date, time, what was said or done, who said or did it, and any witnesses. Be sure to include any complaints you made to HR, your boss or anyone. Keep your log at home, not at work, because you never know what will disappear.
You may ask your employer specifically for reasonable accommodation under the ADA and see what its response is. Put your request in writing, date and sign it, and keep a copy at home for your records. You may need to prove you submitted this request.
You can contact the American Diabetes Association for referrals to employment law attorneys who handle this type of case: http://www.diabetes.org/help/contact-us.html.
In the alternative, 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.
@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: 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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