Layoff After Requesting Accommodations and FMLA

Question: 

I received a layoff notice today, Friday afternoon, effective immediately. It says it is due to finances, but I believe I was chosen because of my illness. Out of the four employees who have been laid off this month, I had the most seniority, and was the only full-time staff member.  I have been working full time at this office for six years.  I was the person who trained everyone currently working in my department. As a matter of fact, I’m the one who wrote the job descriptions and delegated assignments when the company changed hands two years ago!  There are six other full-time employees in my department who have less seniority than I do, and none of them lost their jobs.  I believe that my layoff was, in part, due to filing a request for ADA accommodations this past Monday. 

Last month, I received a clinical diagnosis of probable Mito, based on my symptoms and my sister’s confirmed diagnosis of MELAS.  I almost never call in sick, but the work is affecting my health.  My doctor doesn’t want me to work ten-hour days like I’ve been doing.  She told me that I need to either cut back my hours, or telecommute at least 1/3 of the time.  She also stated that I cannot lift more than 20lbs, walk long distances, or walk up or down stairs.  I know that these restrictions would not adversely affect my productivity.  In fact, I would not be surprised if my productivity would actually go up, because I would not be compromising my health the way I am now.  On Monday, I gave the letter to my employer.  She didn’t say a word about it, didn’t respond to my requests.  The accommodations I asked for included a closer parking spot, the opportunity to do some work from home which I have done in the past, and to avoid heavy lifting, which only means that someone retrieves and carries boxes of annexed files for me.   She didn’t tell me if she was willing to provide the accommodations or if I needed to be transferred to another position.  She was unusually cool and distant throughout the week.  I didn’t hear a word from her until this afternoon, when she called me into her office to break the news, and handed me a box to clean out my desk. 

I’ve been an absolute wreck.  The stress is making my symptoms worse.  I have the worst migraine I’ve had in months, I’m too nauseous to hold down anything but ice chips, and my hands are shaking so badly that I can barely hold the glass.  I’ve been pushing myself for years. Maybe part of me thought that if I kept busy enough I could forget about this awful disease and the tragic effects it’s had on my sister’s family.  As soon as I took steps to start taking better care of myself, I’m out on the street.  I finally give in and accept the label of “officially disabled,” and I become disabled and unemployed.  Two weeks ago, my GI doctor recommended IV fluid boluses three times a week for four weeks.  The infusion clinic is only open 8am to 5pm, so I would need to leave work a few hours early on the days that I have appointments.  I gave the GI doctor the paperwork for FMLA and short term disability insurance, and his secretary mailed it to the Human Resource department the next day.  I think my supervisor received the paperwork, because she nodded when I mentioned leaving early starting next Monday.  Well, next Monday never came.  The company let me go before it said a single word about FMLA or my short-term disability. So, does this mean that I get nothing? I had six full weeks of sick time saved up, and now I don’t know if I’ll be able to use it.  Can my company do that, lay me off without acknowledging my medically necessary accommodations and medical leave?  My husband isn’t home yet, and my kids are out with friends, and I’m just staring at the sparse, impersonal layoff notice…I feel so alone.  

Answer: 

I'm sorry to hear about the loss of your job.  The Americans with Disabilities Act of 1990 ADA) states that “A covered entity shall not discriminate against a qualified individual with a disability. This applies to job application procedures, hiring, advancement and discharge of employees, worker's compensation, job training, and other terms, conditions, and privileges of employment.”  - Several of your concerns are addressed by the ADA; you can find explanations for specific rights and services here.   

While MitoAction cannot offer specific legal advice to site visitors, per Terms of Service, you will be able to gather a good amount of basic advocacy principles through past webinars, podcasts, and articles.  In addition, there are numerous private nonprofit, state, and federal resources that provide pro-rated or pro bono legal advice to people with disabilities. 

Can My Boss Do That is an independent, non-profit organization committed to educating and empowering U.S. workers. CMBDT offers accurate, no-frills explanations regarding topics that are vitally important to workers, their colleagues, and families.  Many topics are investigated and discussed in depth, such as hiring and firing practices, employee safety and health care, pay and working conditions, and unions vs. “at-will” employees.

  Lawyers.com is a free general legal advice service designed specifically for individuals and small businesses, provided by LexisNexis Martindale-Hubbell, a leading provider of business information solutions, This particular link presents a list of frequently asked questions regarding layoffs, termination for any reason, resignation, and leaves of absence for military duty, and limited information regarding federal unemployment benefits.

The U.S. Equal Employment Opportunity Commission Enforcement Guidance   clarifies the job accommodation/modification rights and responsibilities of employers and individuals with disabilities. Title I of the ADA requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, except when such accommodation would cause an undue hardship. This guide can help you evaluate your recent job modification and/or accommodation requests, and your request for time off under the Family Medical Leave Act (FMLA).

Job Accommodation Network (JAN) is a source of free, expert, and confidential guidance on workplace accommodations, job search and interview support, and up-to-date ADA and other legislation of interest for employees and employers.  JAN provides individualized workplace accommodation plans, as well as examples of reasonable accommodations and modifications.  The JAN database is searchable by task, occupation, specific disability or disease/condition, exceptional work conditions such as extremes in environmental temperature, and the complexity of the accommodation. 

These local, state, and national resources that may be able to provide individual, confidential legal services pro bono or on a sliding scale according to your family income:  

The National Disability Rights Network (NDRN)

 

The American Bar Association This referral website maintains lists of legal resources available nationwide for people who are poor, elderly, disabled, or otherwise unable to pay for legal assistance. While the ABA does not provide direct legal services, the website will guide you to lists of services and providers who can. 

 Free legal help is provided for people whose income is below the federal poverty guidelines. As with many state and federal programs, people with disabilities, the elderly, victims of domestic violence, active duty military, and others may be eligible for pro-rated or pro bono services, under certain circumstances.  Contact the ABA for more information. 

 The Equal Employment Opportunity Commission (EEOC) is a government agency that handles discrimination complaints about employment based on age, sex, race, ethnicity, and disability. The toll free number, (800) 669-4000, will connect callers with their local EEOC office, which can discuss complaints.

These two e-books contain detailed information regarding ADA rights and accommodations, patient advocacy, job and healthcare discrimination, and information to assist you with the difficult choices people with chronic illnesses frequently need to make.


“Getting Support, Supporting Others: A Handbook for Working with Non-visible Disabilities” (link)

 "First My Illness, Now Job Discrimination: Steps to Resolution"   (link)

For more information regarding legal issues and advocacy for Mitochondrial families, please refer to the following MitoAction podcasts:

 “Legal Advocacy across the Lifespan” by Valerie A. Powers Smith, Esq.

Advice form a Disability Advocate” by Valerie Powers Smith, Esq.

 “To Work or Not To Work: Personal Disability Choices” by Lee Rachel Jurman