It's been a bad week...anyone have to deal with discrimination and ADA?

Last week was awful. I am (still) having issues with my surgery, although hopefully at my pre-op on December 15th things will work out. I was very upset on Tuesday and feeling sorry for myself, worried I was making the wrong decision, etc. when my husband called from Washington DC (he was on a business trip). He was in a lot of pain and after I read him the signs of a heart attack he felt like he was having one. I made him call the front desk who called the paramedics and he was rushed to the hospital. He did have a heart attack ( he is only 46 years old) and now has 4 stents. So, I temporarily stopped feeling sorry for myself because I was so overwhelmed and worried, especially because I couldn't be there. He is home and feeling really good.

So, now that we had that dealt with I turned my attention to getting my time off from work because the surgery date had been set. I was also upset because I was told that I could be out for 8 weeks and not the 4-6 weeks my prior surgeon who has left the CC told me. Anyway, so I contacted HR who sent me this email back:

Hi Karen….

Sorry I am just getting back to you.



After you exhaust your available sick and personal business/family illness days, we cannot approve docked time and your position is not eligible for leaves. Your position is not eligible for Family and Medical Leave as you do not work enough hours to qualify.



Most staff in this situation resign from their position and when you are able to return to work, you would be eligible for rehire.



~Janey

My job is an instruction assistant. I work with kids with special needs. On a regular basis I get hit, kicked, bit, spit on and I get to change the poopy diapers of elementary aged children. I was not happy that I after being a wonderful employee who has always gotten perfect evaluations and worked there for 4 hard years I was being treated like this. My immediate supervisor said not to worry, they would figure it out, but I would have to resign.

According the ADA amendments of 2008 it looks like I am covered because of the UC. They can't fire me or ask me to resign because I need to take time off to have surgery and recovery that has to do with my disability (this is considered to a reasonable accommodation). Does this sound correct? I am going to call the EEOC today. I don't want to resign because then my years of service go away and I don't want to jeopardize it if they don't have a position for me. Please let me know what you all think.

That doesn't seem right that you would have to resign. I don't know where you stand legally but maybe you should consult an attorney? Why did they say you would have to be out for up to 8 weeks? That seems like a long time.

Look into ADA!!! Your company could get in to serious trouble if you lose your job. You need to research this and bring it to them. Find someone to represent you at the ADA. Don't give up. I was in the same boat, not enough hours for FMLA, etc.....

You were so smart to get your husband to call for medical help. I can't imagine the stress and worry you must be feeling now.

Your employer should have a posted or available printed copy of the FMLA and ADA policies. I would get copies to review. You might want to consult with an attorney or find out if you have access to free legal services in your community or even through a benefit plan at work. (Some companies have things called employee assistance programs that offer free legal consultations. It's separate from the employer so it's not like they are providing you with a lawyer to sue them.)

Even if leave isn't available to you under FMLA (because you haven't worked 1000 hours or in the last 12 months or whatever the requirement is) you may be eligible for leave under ADA. I think that ADA says that the employer has to make a reasonable accommodation. the problem is that it's open to a lot of interpretation. That is, what is reasonable? If they could reasonably hold your job for you, I think that granting a short leave of absence is probably considered a reasonable accommodation. But an attorney who specialized in employment law would know what's the best thing to do.

I believe that under ADA you have to actively request the accommodation, which it sounds like you've done by asking for leave but maybe you have to specifically state that you want to be accommodated under ADA. i would suggest asking an expert about that.

Looks like the place you should call is the Dept of Justice. From the ADA gov website:

The U.S. Department of Justice provides information about the Americans with Disabilities Act (ADA) through a toll-free ADA Information Line. This service permits businesses, State and local governments, or others to call and ask questions about general or specific ADA requirements including questions about the ADA Standards for Accessible Design.

ADA specialists are available Monday through Friday from 9:30 AM until 5:30 PM (eastern time) except on Thursday when the hours are 12:30 PM until 5:30 PM.

For general ADA information, answers to specific technical questions, free ADA materials, or information about filing a complaint, call:

800 - 514 - 0301 (voice)

Take care and best wishes for your surgery.