YANML: After disability, can't do a single aspect of my job. Help?
April 8, 2013 2:59 PM Subscribe
I injured myself last fall... by falling. On my head. I now can't do one aspect of my high-stress job (and it's questionable if I can even do my job fully), even after my employer has been more than reasonable with allowing me time to recover. We're usually pretty well-insulated from the attention of our sharp-clawed HR people and very frightening lawyers, but they're involved now. I can read the EEOC website as well as the next person with a skull fracture, but what does this stuff actually mean?
That fall, by the way, was hard enough to crack even my thick skull. I spent the night in the hospital with a serious concussion and bleeding inside my skull. The next day, the bleeding had abated, and the doctors released me with the instruction to rest and get plenty of sleep. Luckily, there was a vacation period where I could rest for a few weeks. After that few weeks was up, I stubbornly went back to work and accomplished my job at a reduced skill level for several months with no real documentation of anything being wrong with me except verbal communication with my direct supervisor and the usual circuit of the company rumor mill. I (stubbornly) picked up extra shifts and low-level work to make it "even". Last month, I ran out of low-level work and still couldn't function at a higher level. I (at my suggestion) took an FMLA leave of absence using accrued time off so that I could get more rest than I was getting and so that I could make it to the many, many PT and doctors appointments that I had. I am most certainly under the care of an excellent doctor who has provided documentation to my company to start the FMLA leave process.
The long and short of it is that I guess I'm a disabled person now. I cannot process information, which is my primary job responsibility, at the same speed that I previously could. Nor can I process information for as many hours as I previously could... at least right now. I'm still getting better, but not rapidly. I also suffer from headaches that constitute a substantially limiting factor on my life. (I also now wear sunglasses at night, but it's not to keep track of the visions in my eyes. It's because OW F!@$ LIGHT.)
That four weeks of accrued leave time is now at an end, but I still can't do one aspect of my job that is required. That aspect is standing on-call shifts, which are a week long. They involve being woken up every few hours (on a bad week), and then working a full 8-12 hour day. It's sort of like having a newborn. I could ask to not stand them as an accommodation, but according to the EEOC documentation on Reasonable Accommodation, it's not a reasonable accommodation if the employee cannot do something that is required of their position.
I don't think I have short-term disability insurance. I do have more FMLA leave that I can take, and I don't think I need more than another month to recover. However, I'm in a slightly tenuous financial position where I've exhausted my savings with insurance deductibles and copays, and a monthlong (or more) income interruption would be a bit bad. Like, missing payments on mortgage bad, even if I magically got some sort of disability payment from the government -- and not like that would happen instantly, nor would it be anywhere near enough. Imagine for the sake of this discussion that I don't have any family I can lean on for help. I am in the Republic of Texas for the purposes of this conversation with you, who are also not my lawyer.
Ideally, I'd like to keep working for this company, I'd like to go back to work right now, and I'd like to be doing my job again... but getting that little sleep next time my on-call shift is up (which would be immediately) would utterly destroy my ability to function normally for a week or more. I'd like to be reasonable about how I return to work. Back on the other hand, this company has burnt me at both ends for many years and I can't even count the number of 80 hour weeks I've spent on them, and if they have to do something by law to take care of a valuable and highly trained employee, I'm going to hold them to it.
In bare, plain language that someone suffering from a head injury can understand: If my boss's boss calls in HR and they start playing hardball, what options do I have to keep my (or at least a) job and keep getting paid that are still penciling inside the lines of federal law? Also, what are their obligations besides unpaid FMLA leave and offering me a lower paying job -- which is an item that does not currently exist without a relocation on my part?
That fall, by the way, was hard enough to crack even my thick skull. I spent the night in the hospital with a serious concussion and bleeding inside my skull. The next day, the bleeding had abated, and the doctors released me with the instruction to rest and get plenty of sleep. Luckily, there was a vacation period where I could rest for a few weeks. After that few weeks was up, I stubbornly went back to work and accomplished my job at a reduced skill level for several months with no real documentation of anything being wrong with me except verbal communication with my direct supervisor and the usual circuit of the company rumor mill. I (stubbornly) picked up extra shifts and low-level work to make it "even". Last month, I ran out of low-level work and still couldn't function at a higher level. I (at my suggestion) took an FMLA leave of absence using accrued time off so that I could get more rest than I was getting and so that I could make it to the many, many PT and doctors appointments that I had. I am most certainly under the care of an excellent doctor who has provided documentation to my company to start the FMLA leave process.
The long and short of it is that I guess I'm a disabled person now. I cannot process information, which is my primary job responsibility, at the same speed that I previously could. Nor can I process information for as many hours as I previously could... at least right now. I'm still getting better, but not rapidly. I also suffer from headaches that constitute a substantially limiting factor on my life. (I also now wear sunglasses at night, but it's not to keep track of the visions in my eyes. It's because OW F!@$ LIGHT.)
That four weeks of accrued leave time is now at an end, but I still can't do one aspect of my job that is required. That aspect is standing on-call shifts, which are a week long. They involve being woken up every few hours (on a bad week), and then working a full 8-12 hour day. It's sort of like having a newborn. I could ask to not stand them as an accommodation, but according to the EEOC documentation on Reasonable Accommodation, it's not a reasonable accommodation if the employee cannot do something that is required of their position.
I don't think I have short-term disability insurance. I do have more FMLA leave that I can take, and I don't think I need more than another month to recover. However, I'm in a slightly tenuous financial position where I've exhausted my savings with insurance deductibles and copays, and a monthlong (or more) income interruption would be a bit bad. Like, missing payments on mortgage bad, even if I magically got some sort of disability payment from the government -- and not like that would happen instantly, nor would it be anywhere near enough. Imagine for the sake of this discussion that I don't have any family I can lean on for help. I am in the Republic of Texas for the purposes of this conversation with you, who are also not my lawyer.
Ideally, I'd like to keep working for this company, I'd like to go back to work right now, and I'd like to be doing my job again... but getting that little sleep next time my on-call shift is up (which would be immediately) would utterly destroy my ability to function normally for a week or more. I'd like to be reasonable about how I return to work. Back on the other hand, this company has burnt me at both ends for many years and I can't even count the number of 80 hour weeks I've spent on them, and if they have to do something by law to take care of a valuable and highly trained employee, I'm going to hold them to it.
In bare, plain language that someone suffering from a head injury can understand: If my boss's boss calls in HR and they start playing hardball, what options do I have to keep my (or at least a) job and keep getting paid that are still penciling inside the lines of federal law? Also, what are their obligations besides unpaid FMLA leave and offering me a lower paying job -- which is an item that does not currently exist without a relocation on my part?
P.S. I'm sorry to hear about your injury, and wish you the best for your recovery.
posted by anonnymoose at 3:02 PM on April 8, 2013
posted by anonnymoose at 3:02 PM on April 8, 2013
You want to talk to a lawyer about this. It is possible for instance that you have diminished earning capacity for some amount of time in the future, and it is also possible that your employer's negligence caused this, in which case you might have a case for them to make you financially whole, and you could then either pursue that or use it as the stick where the carrot is something else.
Or not. The specifics are going to depend on local and federal law, whether the employer has had workplace safety issues before, whether this injury was caused by negligence on the employers part, etc. etc.
Call a decent lawyer, sit down for a free consult, and find out what your options are.
posted by zippy at 3:09 PM on April 8, 2013
Or not. The specifics are going to depend on local and federal law, whether the employer has had workplace safety issues before, whether this injury was caused by negligence on the employers part, etc. etc.
Call a decent lawyer, sit down for a free consult, and find out what your options are.
posted by zippy at 3:09 PM on April 8, 2013
LAWYER LAWYER LAWYER. You have extremely complex legal questions that are fact-specific and dependent on a lot of small quirks of state and local law, your company, and your medical needs. No non-lawyer here can even begin to answer your questions, and it would be unethical for any lawyer here to answer them without establishing a relationship with you and getting the necessary information about your situation. You need to start consulting attorneys who specialize in disability and employment law.
posted by decathecting at 3:09 PM on April 8, 2013 [6 favorites]
posted by decathecting at 3:09 PM on April 8, 2013 [6 favorites]
Get a lawyer. Start documenting what happened. You need a paper trail. You need signed statements from physicians. If this was an on the job injury, then I think you should be able to look for recompense. If nothing else, you need to find out what your options are for seeking government paid disability. That takes a paper trail.
You can memail me if you want to talk about nutritional support to help your brain heal as best it can but you should, for now, assume that you will never really be the same mentally.
posted by Michele in California at 3:10 PM on April 8, 2013
You can memail me if you want to talk about nutritional support to help your brain heal as best it can but you should, for now, assume that you will never really be the same mentally.
posted by Michele in California at 3:10 PM on April 8, 2013
Modified work schedules are listed downpage as being an example of reasonable accommodation. Please, please, please talk to a lawyer first before you go spouting off to your boss, but this should be fully covered under the ADA.
posted by Oktober at 3:12 PM on April 8, 2013
posted by Oktober at 3:12 PM on April 8, 2013
If my boss's boss calls in HR and they start playing hardball, what options do I have to keep my (or at least a) job and keep getting paid that are still penciling inside the lines of federal law?
Your option is to have an attorney on your side. You can try calling Disability Rights Texas and asking them about any referral lists they may have to private attorneys or to organizations that work on disability and employment.
Sometimes people post things on AskMe and I think, "Eh, an attorney could help but you could probably figure it out yourself," or even, "A lawyer would make things worse in this case." Other times, people post things on AskMe and I think, "LAWYER LAWYER LAWYER LAWYER LAWYER WOW GET A LAWYER." This is the second kind of question.
posted by Snarl Furillo at 3:39 PM on April 8, 2013
Your option is to have an attorney on your side. You can try calling Disability Rights Texas and asking them about any referral lists they may have to private attorneys or to organizations that work on disability and employment.
Sometimes people post things on AskMe and I think, "Eh, an attorney could help but you could probably figure it out yourself," or even, "A lawyer would make things worse in this case." Other times, people post things on AskMe and I think, "LAWYER LAWYER LAWYER LAWYER LAWYER WOW GET A LAWYER." This is the second kind of question.
posted by Snarl Furillo at 3:39 PM on April 8, 2013
You need to get a lawyer right away. Do not delay; you may be doing things that could hurt your eventual case right now.
posted by grouse at 3:42 PM on April 8, 2013
posted by grouse at 3:42 PM on April 8, 2013
Get a lawyer! Also, are you eligible for AFLAC? This would help you cover the pay gap.
posted by spunweb at 3:53 PM on April 8, 2013
posted by spunweb at 3:53 PM on April 8, 2013
You need to be very strategic about what you say and do and request. Reasonable accommodations are often a result of a back and forth process that depends on the employer's willingness to work with you, the extent to which they value you, and whether it's possible (or reasonable) for them to restructure your job to accommodate your new impairment.
Things that you say or do now could have a lasting effect down the line in terms of the ultimate outcome in your situation. You don't necessarily need to "play hardball," but you want expert advice from someone who is unequivocally on *your* side, so that your rights are enforced.
A lawyer won't necessarily solve everything but having one won't hurt and could possibly help a great deal.
posted by jasper411 at 3:56 PM on April 8, 2013
Things that you say or do now could have a lasting effect down the line in terms of the ultimate outcome in your situation. You don't necessarily need to "play hardball," but you want expert advice from someone who is unequivocally on *your* side, so that your rights are enforced.
A lawyer won't necessarily solve everything but having one won't hurt and could possibly help a great deal.
posted by jasper411 at 3:56 PM on April 8, 2013
Mod note: From the OP:
It was not a work-related accident. It was just the result of stupidity on my part.posted by jessamyn (staff) at 6:15 PM on April 8, 2013
You want to talk to a lawyer about this. It is possible for instance that you have diminished earning capacity for some amount of time in the future, and it is also possible that your employer's negligence caused this, in which case you might have a case for them to make you financially whole, and you could then either pursue that or use it as the stick where the carrot is something else.
I just saw the update, but my comment was going to be that if this was a work-related accident, there is probably no cause of action against the employer because of the doctrine of worker's comp immunity, which provides that an employer who provides worker's comp insurance is immune from such lawsuits. (this will depend on the state)
IAAL, IANYL, TINLA. This is going to be a fact-intensive matter that requires consultation with an employment law attorney. It appears that you have done some decent research on your own and that you have already managed your expectations a bit. We are not wizards. Consulting with a lawyer doesn't mean you are going to be suing anyone. It just means that you are going to learn what your options are.
posted by Tanizaki at 6:39 PM on April 8, 2013 [1 favorite]
I just saw the update, but my comment was going to be that if this was a work-related accident, there is probably no cause of action against the employer because of the doctrine of worker's comp immunity, which provides that an employer who provides worker's comp insurance is immune from such lawsuits. (this will depend on the state)
IAAL, IANYL, TINLA. This is going to be a fact-intensive matter that requires consultation with an employment law attorney. It appears that you have done some decent research on your own and that you have already managed your expectations a bit. We are not wizards. Consulting with a lawyer doesn't mean you are going to be suing anyone. It just means that you are going to learn what your options are.
posted by Tanizaki at 6:39 PM on April 8, 2013 [1 favorite]
I agree with everyone who suggests that you absolutely need to talk to a lawyer.
It's not a reasonable accommodation if the employee cannot do something that is required of their position.
My general understanding of the law is that if a person cannot do the essential components of their job, they can be let go. If they can do the essential components of the job, the employer must make reasonable accommodations.
I believe there are often long legal battles over what is and what is not an essential function of the job, and what is and what is not a reasonable accommodation. I suggest letting a lawyer advise you on what is/ is not essential to your job and what is/ is not a reasonable accommodation.
posted by insectosaurus at 7:31 PM on April 8, 2013 [1 favorite]
It's not a reasonable accommodation if the employee cannot do something that is required of their position.
My general understanding of the law is that if a person cannot do the essential components of their job, they can be let go. If they can do the essential components of the job, the employer must make reasonable accommodations.
I believe there are often long legal battles over what is and what is not an essential function of the job, and what is and what is not a reasonable accommodation. I suggest letting a lawyer advise you on what is/ is not essential to your job and what is/ is not a reasonable accommodation.
posted by insectosaurus at 7:31 PM on April 8, 2013 [1 favorite]
You need to get a lawyer for the ADA stuff, for sure.
However, if you have FMLA left and you think you may need more to recover/ease back in, even though your do not need a month in a row with no work, you can request reduced work schedule/intermittent leave FMLA. It's unpaid and the facts and circumstances might be that you are not entitled to it, but it's worth a try.
posted by Pax at 7:06 AM on April 9, 2013 [1 favorite]
However, if you have FMLA left and you think you may need more to recover/ease back in, even though your do not need a month in a row with no work, you can request reduced work schedule/intermittent leave FMLA. It's unpaid and the facts and circumstances might be that you are not entitled to it, but it's worth a try.
posted by Pax at 7:06 AM on April 9, 2013 [1 favorite]
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posted by anonnymoose at 3:01 PM on April 8, 2013 [17 favorites]