Asked over 1 year ago - Olympia, WAFlag
I work for a major retail store as a clerk. I routinely get excellent reviews. However, I have a serious chronic illness and get sick about 3 or 4 days a month. Recently my boss told me that I need to get a doctors note or these absenses could not be excused. I got a note but when my next review came up I didn't get a raise (as would be the custom for excellent reviews) because of my absenses. I mentioned the note, and they said that even though its excused they think i am sick too much. Litterally every single review point was marked excellent, except for attendence. I love my work and would never miss a day on a healthy day. I feel like I did not get my raise because of my chronic illness. Could you point me to the relevant statutes or ADA section that applies to this issue.
I am a California attorney and not eligible to give legal advice in your state. The following is 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. However, you should not rely on any comment I make regarding your state's law. You MUST check with an attorney licensed in your state.
I'm sorry this is happening to you. You are correct that an employer may not penalize an employee IN ANY WAY WHATSOEVER because of his or her disability or because the employee needs reasonable accommodation. In your case, the reasonable accommodation would be (probably) additional time off from work. This is a fundamental component of the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA).
Also, you may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you have a serious medical condition as defined by the FMLA.
The FMLA allows employees with serious medical conditions to take leaves of absence for a maximum of 12 weeks per year. The time can be taken all at once or in increments of one day or even one hour. When the employee returns from leave, the employer must put the employee back into the same position held before the leave, or a substantially equivalent position that has equal or similar pay, equal or similar duties, equal or similar working conditions, etc.
If you take advantage or request leave under the FMLA, your employer is prohibited from discriminating against you. It cannot take adverse action because you needed FMLA-qualifying leave. For example, your employer cannot demand that an employee who takes FMLA leave provide medical information that employees who take any other kind of medical leave do not have to provide. Also, your employer cannot limit you in terms of job advancement, training, pay, work product, etc.
Please look at my Avvo guide on the FMLA for a better understanding of these rights: http://www.avvo.com/pages/show?category_id=6&pe....
The parts of the FMLA that you are looking for are:
29 U.S.C. section 2615(a)
(1) It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
(2) It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
29 C.F.R. § 825.220 (a) The FMLA prohibits interference with an employee's rights under the law, and with legal proceedings or inquiries relating to an employee's rights. More specifically, the law contains the following employee protections:
(1) An employer is prohibited from interfering with, restraining, or denying the exercise of (or attempts to exercise) any rights provided by the Act.
(2) An employer is prohibited from discharging or in any other way discriminating against any person (whether or not an employee) for opposing or complaining about any unlawful practice under the Act.
“[E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under ‘no fault’ attendance policies.” [Bachelder v. America West Airlines, Inc., supra, 259 F3d at 1122 (emphasis in original), citing 29 CFR § 825.220(c).
I do not think that you have a vested right to a raise that would support a Discrimination case. It does not sound like they have changed your hours, demoted or actually/constructively terminated you. There may or may not be other undisclosed facts substantiating some colorable discrimination, so you may wish to consult with a local Attorney. However, allowing an ADA discrimination case every time a disabled person does not get a subjectively due increase will create tons of litigation. I would not like to see the fist of government that far up the butt of Business.
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