I started working for my employer on April 16, 2012. Shortly before starting my job I was diagnosed with Rheumatoid Arthritis. I have also been seeing a doctor for post-surgery complications due to a botched surgical procedure I had on my stomach in July 2011.
I have had to miss 2 days of work for calling in sick and I have had doctor's appointments with scheduled time off work twice now. I had to tell my employer what my health issues are and the reason why I called in sick two days and had appointments for the other two days. With the appointments, I went to work and left early for the appointments. But, my employer told me yesterday that attendance is very important and I cannot miss any more days for even doctor's appointments or I would be fired.
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.
You probably are entitled to leaves of absence as a reasonable accommodation for disability under the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and any similar state law. This law 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. From your description, your RA probably meets the definition of "disability."
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. Also, please look at my Avvo guide on medical examinations and confidentiality under the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=medical-information-and-the-ada--inquiries-and-confidentiality.
Unless the ADA or a similar state law applies, you are probably out of luck. The harsh reality is employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. There are some limitations, mostly in the areas of public policy (such as discrimination law), contract law, union-employer labor relations, and constitutional due process. Please look at my Avvo guide to at-will employment which may help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states.
After you take a look at the guide I linked to above, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful. Obviously, disability discrimination and failure to accommodate disability is the obvious area to consider.
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 y
*** 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. ***
Given your start date at this employer (April 16, 2012), it appears as though you are not (yet) eligible for Family and Medical Leave Act (FMLA) leave, even assuming that your employer is covered by the FMLA. Regardless, there are some serious, potential legal issues and concerns here, including whether you have a disability and whether your employer is refusing to reasonably accommodate that disability by not allowing you time to visit your doctor and threatening termination.
You should contact an employment law attorney in WI immediately.
Scott S. Luzi
Walcheske & Luzi, LLC
This response is for general informational purposes only and does not constitute legal advice, create an attorney-client relationship, or necessarily reflect the most current legal developments.
Assuming your medical condition is serious enough to qualify you for protection from disability discrimination under Federal and Wisconsin law, your employer has a duty to make reasonable accomodations for you in your job as long as you can perform the essential functions of your position either with or without reasonable accomodation. This requires a discussion between you and your employer about what you need--which sounds like a modified schedule or simply time off for medical appointments. You should take a look at the web links below for the Job Accomodation Network and the Wisconsin Equal Rights Division for discussions on the mutual responsibilities of employees and employers to find reasonable accomodation. It is very important that you communicate your need for a particular accomodation because of your medical condition and that you disclose the medical reason supporting your need for the accomodation, which you may have already done. The employer then has duty to consider that requested accomodation and, if reasonable, accomodate you in that manner or suggest an alternative reasonable accomodation. This may be a dialog back and forth to find a reasonable accomodation that works for you both. Very important--don't refuse to consider alternative accomodations. Employees are not necessarilly entitled to the specific accomodation they request. Sometimes, sometimes not. This is a very fact-specific issue. Involve your doctors in the process if necessary to determine appropriate accomodations. If your employer refuses to provide you with a reasonable accomodation or termiantes your employment motivated by your medical condition, then it may be in violation of these laws. You would have only 300 days to file a complaint with either the Federal EEOC of the Wisconsin ERD to enforce your rights and remedies at law.
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