ADA accommodations after FMLA runs out
April 13, 2014 11:14 AM Subscribe
Due to a flare up in a (diagnosed, currently being treated) disability, I've had to take intermittent FMLA leave - which is about to hit the 12 week limit! How do I talk to my boss about reasonable accommodations going forward?
Let me preface this by saying that my goal in asking this question is to keep my job, and cause the least amount of upset for everyone involved. I'm in Michigan.
Last year, I had a flare up in my disability that forced me to take FMLA - part of it was a chunk of time, and the rest has been on an intermittent basis. However, I will shortly be running into the time limit (12 weeks).
Things have been improving, however, I know I am going to need further accommodation. I've spoken with my doctor, and I qualify for "reasonable accommodation" under the Americans with Disabilities act.
Again, I love my job - and I'm great at it. My performance reviews have all been "exceeds expectations" in every category - which is why I'm shocked at my boss' reaction to both the intermittent FMLA, and his utter refusal to discuss accommodations.
He's made comments stating that he's tired of the "extra paperwork" he has to fill out for me. He tells me how much I bring the team morale down. He's asked me if I believe that I deserve special treatment that no one of the 100s of employees receive.
This was before I asked him to schedule a meeting to discuss what accommodations would work best. This was over a month ago. I keep bringing up suggestions, such as alternate work schedules, making up hours I may miss, and he shuts me down, saying that he's not "comfortable" with those suggestions and "why can't I just work my scheduled shift"
So, I'm out of ideas. If he won't even have a discussion with me exploring what accommodations might work (I believe, per the ADA, once the issue is raised, it's on the employer to follow through), what steps do I need to take to protect my job? Is there any magic words I can use? Do I need to go to HR? If I go to HR, do I mention his lack of responsiveness?
Do I look at a lawyer this early? Thanks for any helpful suggestions.
Throwaway email: wanttostayatjob@gmail.com
Let me preface this by saying that my goal in asking this question is to keep my job, and cause the least amount of upset for everyone involved. I'm in Michigan.
Last year, I had a flare up in my disability that forced me to take FMLA - part of it was a chunk of time, and the rest has been on an intermittent basis. However, I will shortly be running into the time limit (12 weeks).
Things have been improving, however, I know I am going to need further accommodation. I've spoken with my doctor, and I qualify for "reasonable accommodation" under the Americans with Disabilities act.
Again, I love my job - and I'm great at it. My performance reviews have all been "exceeds expectations" in every category - which is why I'm shocked at my boss' reaction to both the intermittent FMLA, and his utter refusal to discuss accommodations.
He's made comments stating that he's tired of the "extra paperwork" he has to fill out for me. He tells me how much I bring the team morale down. He's asked me if I believe that I deserve special treatment that no one of the 100s of employees receive.
This was before I asked him to schedule a meeting to discuss what accommodations would work best. This was over a month ago. I keep bringing up suggestions, such as alternate work schedules, making up hours I may miss, and he shuts me down, saying that he's not "comfortable" with those suggestions and "why can't I just work my scheduled shift"
So, I'm out of ideas. If he won't even have a discussion with me exploring what accommodations might work (I believe, per the ADA, once the issue is raised, it's on the employer to follow through), what steps do I need to take to protect my job? Is there any magic words I can use? Do I need to go to HR? If I go to HR, do I mention his lack of responsiveness?
Do I look at a lawyer this early? Thanks for any helpful suggestions.
Throwaway email: wanttostayatjob@gmail.com
I'm in the middle of going through this same process with my employer, albeit with one major difference: they are happily willing to make whatever accommodations I need to keep me working for them. I'm sorry your boss is being such an a-hole.
You need to get an actual letter from your doctor spelling out the kind of accommodations you need and take it to HR. It is their responsibility to navigate the ins and outs of an arrangement, both with you and with your boss. At this point I wouldn't mention his lack of responsiveness with them - just get the official process started and see where it goes from there. If things go poorly, then think about lawyering up.
Good luck.
posted by hapax_legomenon at 11:25 AM on April 13, 2014 [1 favorite]
You need to get an actual letter from your doctor spelling out the kind of accommodations you need and take it to HR. It is their responsibility to navigate the ins and outs of an arrangement, both with you and with your boss. At this point I wouldn't mention his lack of responsiveness with them - just get the official process started and see where it goes from there. If things go poorly, then think about lawyering up.
Good luck.
posted by hapax_legomenon at 11:25 AM on April 13, 2014 [1 favorite]
BTW, more anecdotal info in case it's helpful since I was just talking with my neurologist about this on Friday; she said in her experience these letters can take one of two forms: 1) when the employer is already open and amenable to making accommodations, she'll often keep her recommendations fairly loose, e.g., "hapax_legomenon suffers from chronic migraines and as such needs the ability to work from home as well as a non-fluorescently lit workspace." 2) when the employer is NOT receptive to voluntarily making changes, she often has to itemize in explicit detail the exact accommodations required. She said she once went back and forth with an employer whose response to a letter like #1 above said, "How exactly should the workspace be not lit with fluorescent lights?" My doc said, "You need to remove the fluorescent bulbs within a 10-ft square area around the workspace." She said it went on from there, with the employer asking questions like, "If it's not lit with fluorescent lights how should we light it?" Etc.
The point of all that being you might want to be mentally prepared for this to take a few rounds of back-and-forth communication/negotiation to resolve.
posted by hapax_legomenon at 11:34 AM on April 13, 2014 [3 favorites]
The point of all that being you might want to be mentally prepared for this to take a few rounds of back-and-forth communication/negotiation to resolve.
posted by hapax_legomenon at 11:34 AM on April 13, 2014 [3 favorites]
Immediately, as in really immediately, document every conversation, every suggestion you've made, and your boss' responses. Your employer is required to provide reasonable accommodation. Yes, go to HR, and you can be cheerfully honest, Well, gee, I've made suggestions to Boss, but we haven't made any progress, so I need some help.
posted by theora55 at 12:30 PM on April 13, 2014
posted by theora55 at 12:30 PM on April 13, 2014
... and when you to go HR with that letter from your physician, you need to tell them, specifically, "He's made comments stating that he's tired of the 'extra paperwork' he has to fill out for me. He tells me how much I bring the team morale down. He's asked me if I believe that I deserve special treatment that no one of the 100s of employees receive. I am concerned that I will be retaliated against for requesting ADA accommodations, and I want to ensure that that does not happen."
posted by juniperesque at 1:12 PM on April 13, 2014 [11 favorites]
posted by juniperesque at 1:12 PM on April 13, 2014 [11 favorites]
He's asked me if I believe that I deserve special treatment that no one of the 100s of employees receive.
If none of the other employees qualify for federally mandated accommodation, then yes, this is exactly what you believe.
And there is nothing wrong with that.
posted by Nonsteroidal Anti-Inflammatory Drug at 1:43 PM on April 13, 2014 [4 favorites]
If none of the other employees qualify for federally mandated accommodation, then yes, this is exactly what you believe.
And there is nothing wrong with that.
posted by Nonsteroidal Anti-Inflammatory Drug at 1:43 PM on April 13, 2014 [4 favorites]
I would contact JAN. They're a free federal resource that will give you and your employer personalized guidance through this process. They are completely confidential for both parties, and can both advise on legal requirements and how to implement accommodations.
posted by susanvance at 3:44 PM on April 13, 2014 [1 favorite]
posted by susanvance at 3:44 PM on April 13, 2014 [1 favorite]
Seconding susanvance's idea to contact JAN. I've worked with them to help implement appropriate accomodations as an HR manager and they're fabulous.
As others have said, go directly to HR with this, preferably with physician's letter detailing the accommodations you'll need in hand, and do also let them know about your boss' comments (with dates & specific remarks documented, if you can), and mention your fear of retaliation. Obviously, IANYHRM, but if I were, I'd be giving your boss a very pointed talk because 1) that shit's not cool and 2) it opens up the company to all kinds of liabilities that your HR people don't want to have to deal with. Start this process before you run out the clock on your 480 hours of FMLA; the sooner the better.
Do not bring this up again with your boss without someone else present.
posted by ThatSomething at 5:30 PM on April 13, 2014
As others have said, go directly to HR with this, preferably with physician's letter detailing the accommodations you'll need in hand, and do also let them know about your boss' comments (with dates & specific remarks documented, if you can), and mention your fear of retaliation. Obviously, IANYHRM, but if I were, I'd be giving your boss a very pointed talk because 1) that shit's not cool and 2) it opens up the company to all kinds of liabilities that your HR people don't want to have to deal with. Start this process before you run out the clock on your 480 hours of FMLA; the sooner the better.
Do not bring this up again with your boss without someone else present.
posted by ThatSomething at 5:30 PM on April 13, 2014
You need to contact HR and or the equal opportunity office at your work. They will negotiate with your boss, and help him with the paperwork possibly. I would do that and see how that goes. It's not something to discuss with your boss unless you work in a small business.
posted by Jewel98 at 6:49 PM on April 13, 2014
posted by Jewel98 at 6:49 PM on April 13, 2014
I work in the civil rights field and I have a slightly different take on the process. Mainly, I disagree that the physician specifies the accommodations. Rather, the task is for you to gather medical support for your need for accommodations. You do that by providing (from the physician) the diagnosis, a detailed description of the impairment(s), information about the functional limitations currently caused by the impairment, side effects of any drugs you are taking, etc. Also, if your impairment or condition is intermittent or changes then ask the doctor to explain how your condition changes, or is expected to change. The clinician can, if he or she is able, suggest possible accommodations. But the physician's area of expertise is your disability, not what to do about it on the job.
Next, armed with detailed information from your doctor, you then request that your employer initiate promptly the "interactive process" that you are entitled to. That process will have a back and forth aspect to it (and I understand that your first attempt was not a supportive atmosphere). The other suggestions here for how to get that back on track (HR, JAN) are really good. During that process, your accommodations are hammered out. It's not so much that you tell the employer what he must do, it's that you and he talk. At this stage, you may want to have an advocate, but I recommend someone who will keep the tone positive, someone who will preserve the relationship which you will need for a promising future.
Ultimately, with your input, and based on the medical documentation, and any other expert advice received, the employer will decide what accommodations you will be granted. When you get to that stage, get your accommodations in writing. Incidentally, the reactions of your co-workers cannot be used to deny you accommodations.
If the accommodations offered are not sufficient or effective, let the employer know right away. If you are denied further consideration of your concerns, the time for legal help has clearly arrived. Good luck to you!
posted by Prayless at 8:34 PM on April 13, 2014 [1 favorite]
Next, armed with detailed information from your doctor, you then request that your employer initiate promptly the "interactive process" that you are entitled to. That process will have a back and forth aspect to it (and I understand that your first attempt was not a supportive atmosphere). The other suggestions here for how to get that back on track (HR, JAN) are really good. During that process, your accommodations are hammered out. It's not so much that you tell the employer what he must do, it's that you and he talk. At this stage, you may want to have an advocate, but I recommend someone who will keep the tone positive, someone who will preserve the relationship which you will need for a promising future.
Ultimately, with your input, and based on the medical documentation, and any other expert advice received, the employer will decide what accommodations you will be granted. When you get to that stage, get your accommodations in writing. Incidentally, the reactions of your co-workers cannot be used to deny you accommodations.
If the accommodations offered are not sufficient or effective, let the employer know right away. If you are denied further consideration of your concerns, the time for legal help has clearly arrived. Good luck to you!
posted by Prayless at 8:34 PM on April 13, 2014 [1 favorite]
Mod note: From the OP:
So, after being advised not to come in today after talking to the HR manager, she calls me this evening.posted by jessamyn (staff) at 4:34 PM on April 16, 2014
It seems that the conversation has now turned into how confrontational -I- am with my manager, and how he is uncomfortable with me as I'm so consistently negative. And he denied that he ever said he was "Sick of all the extra paperwork I cause this. The HR manager has now decided it's a simple "He said, she said" argument, and we'll "Just have to find out how to get past it"
And then she slipped up and mentioned how disruptive my "Attendance issues" have been. "You mean the FMLA time you can't count AT ALL when it comes to job performance?"
This is followed up by her saying that she really doesn't think that up to 3 days off a month wouldn't cause an "Undue hardship"
At this point, I'm afraid to go into that meeting tomorrow. I feel like I'm being railroaded.
At this point, I'm afraid to go into that meeting tomorrow. I feel like I'm being railroaded.
Go to the meeting. Write down as much as you can. Agree to nothing. Work a full day. As soon as you are off their property, pull into a convenient parking lot and call a lawyer. Yes, even if the meeting goes super well with HR. You have seen what they look like when the mask comes off, and you want to protect yourself before the next time it slips.
posted by Etrigan at 4:40 PM on April 16, 2014
Go to the meeting. Write down as much as you can. Agree to nothing. Work a full day. As soon as you are off their property, pull into a convenient parking lot and call a lawyer. Yes, even if the meeting goes super well with HR. You have seen what they look like when the mask comes off, and you want to protect yourself before the next time it slips.
posted by Etrigan at 4:40 PM on April 16, 2014
Mod note: From the OP:
As a parting shot, my employer casually mentoned that if they DID grant that accommodation.. well, since I would no longer be averaging 40 hour weeks , the company couldn't be expected to pay benefits.posted by jessamyn (staff) at 5:41 AM on April 17, 2014
Here's hoping I have another day or so of FMLA leave, because there is no way Im holding it together through that meeting in the morning
Allow me to amend my previous advice: Lawyer up now. That "casual mention" was pretty clearly "If you pursue this, then we are going to fuck you over." Cancel the meeting, but still work the full day. Refuse to talk to anyone about it. If they press you, say that you can't handle dealing with it right now but you'd be perfectly willing to reschedule it next week (not reschedule it for next week, but discuss rescheduling it next week). Leave the premises at lunch and check around for an employment lawyer.
You can get through this. Don't panic about it today. You don't have to do what they want you to do on their schedule -- that is how bullies work, by making you decide RIGHT NOW.
posted by Etrigan at 6:09 AM on April 17, 2014
You can get through this. Don't panic about it today. You don't have to do what they want you to do on their schedule -- that is how bullies work, by making you decide RIGHT NOW.
posted by Etrigan at 6:09 AM on April 17, 2014
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