Best Ohio Disability Discrimination Lawyer and FMLA Attorney Answer: What rights to I have under the FMLA to get time off during the work day? How do I get a medical leave from my job for a serious medical condition? Who do I have to ask for a disability accommodation at my job?
As regular readers of our employment law blogs knows, the employment lawyers at Spitz, The Employee’s Law Firm regularly take on employers, both big and small, who retaliate against employees for taking medical leave under the Family and Medical Leave Act (“FMLA“) or have committed disability discrimination against disabled workers. (See Do I Have A Claim For FMLA Retaliation?; Can My Boss Write Me Up For Taking Medical Leave?; Can My Boss Fire Me Because I Used FMLA Leave?; What Should I Do If I Was Harassed For Using FMLA?; My Job Is Discriminates Against Me Because I’m Disabled!; and Can I Be Denied A Job Because Of Prescribed Medications?)
Many employees know that the FMLA is a federal law that lets covered employees take extended time away from work, to handle certain family or medical needs. Under this federal employment law, your employer is required to provide eligible employees with a maximum of twelve weeks of leave if the employer is a private business engaged in, or affecting, interstate commerce, that employed fifty or more employees in twenty or more weeks in the current or prior calendar year. Furthermore, an employee who works for a covered employer is eligible for leave if he or she worked for the employer for at least twelve months, and for at least 1,250 hours over the twelve months immediately preceding the need for leave. (See Top FMLA Lawyer: Am I Eligible For Medical Leave From My Job?; and Are All Employees Eligible For FMLA?)
Specifically, an eligible employee may take leave:
- For the birth, adoption, or placement of a child;
- To care for a spouse, minor, or incompetent child, or parent who has a “serious health condition” (more on this below);
- To handle the employee’s own serious health condition that makes him or her unable to work.
Moreover, § 2615 of the FMLA prohibits employers from discharging, discriminating or otherwise retaliating against an employee for exercising his rights under the FMLA. Importantly, when an employee returns from leave granted by the FMLA, he or she is entitled to be restored to his or her former job, or to an equivalent job, with equivalent pay, benefits, and other terms of employment.
Separately, all employees are also protected under Americans with Disabilities Act (“ADA“)
and Ohio R.C. § 4112.02(A) from being discriminated against or retaliated against by their employers on the basis of their actual or perceived disability. These laws also prohibit employers from making pre-employment, disability-related inquiries of job applicants.
Moreover, The ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.”
Recently, in Easter v. Asurion Insurance Services, Inc., the United States District Court for the Middle District of Tennessee rejected an employer’s motion for to throw the case out as to a former employee’s FMLA interference and disability discrimination claims holding that: (1) a material issue of fact remained as to whether the employer interfered with the employee’s FMLA rights by failing to comply with the FMLA’s notice requirements, and (2) the employee established the employer’s failure to engage in the interactive process for determining whether the employee needed a disability accommodation, which “could be an independent violation of the ADA.” This means that the employee will get her day in court and have his employment claims decided by a jury/
Jennifer Easter started working for Asurion in the position as a Customer Service Representative Pursuant to its attendance policies, Asurion employees were told that they could not be absent more than eight percent of any given month and had to let their supervisor or manager know one hour before their scheduled shift that he or she would be absent. Typically, violations of this attendance policy were handled in a progressive discipline manner.
Easter, the employee-plaintiff, had been given documnented discipline for attendence nine times over about two years. “Asurion issued Plaintiff (1) an ACAP on December 6, 2011, because her attendance percentage for November 2011 was 9.69%; (2) a PIP on January 11, 2012, because her attendance percentage for December 2011 was 8.08%; (3) an ACAP on April 9, 2012, because her attendance percentage for March 2012 was 8.62%; (4) an ACAP on July 7, 2012, because her attendance for the month of June 2012 was 13.08%; (5) an ACAP on October 5, 2012, because her attendance for the month of September 2012 was 15.62%; (6) a verbal warning on November 30, 2012, for failing to call in advance of her absence; and (7) an ACAP on January 4, 2013, because her absence for the month of December 2012 was 17.17%.”
While the tardies and number of write-ups were not in dispute, the employee argued that she had told her employer that the cause of her need to be tardy to work, leave work early, or to be absent from the job was because of her irritable bowel syndrome (“IBS”) and chronic stomach problems, which she believed was a serious health condition. Easter testified that she requested an accommodation from her boss to deal with this medical condition. Additionally, the employee testified during her employment discrimination lawsuit that her IBS, including bathroom breaks, and a stomach bleed for resulting in hospital care caused her attendance shortfalls. Easter testified that she explained all of this to her supervisor. According to Easter, she also offered to work longer hours to make up the time.
However, per the employee’s testimony, her manager responded that once an employee exceeds the eight percent absence allowance, “it didn’t matter what the reason was,” and the supervisor said “there is nothing that we can do for you.”
When the employer continued to progressively discipline Easter for under the attendance policy, the employee inquired about the possibility for FMLA leave.
Within days of mentioning FMLA leave, the employer fired Easter for her failure to improve her attendance under the Performance Improvement plan. Before they could fire her at the meeting scheduled to fire her, the employee again raised the issue of FMLA. It sure looks like a wrongful termination to me. The court agree.
Using these facts, the court first looked at the employee’s FMLA interference claim, denying summary judgment:
In this case, the Court finds that a genuine issue of material fact has been presented on whether Asurion interfered with Plaintiff’s FMLA rights by failing to comply with the Act’s notice requirements. Failure to comply with the applicable notice provisions can constitute interference under the FMLA. …
Here, Plaintiff claims that she repeatedly told her employer that she had IBS and stomach problems that required her to miss work her to having to miss work, affected her ability to get to work on time, and impacted the time that she was at work due to the need for frequent bathroom breaks. She also claims that her pleas fell on deaf ears, although on one occasion, Mr. Rowe told her to wait to request FMLA leave until the following year since Asurion was in the process of changing administrators. This is more than enough to place Defendant on inquiry notice that Plaintiff may have been suffering from a condition for which Plaintiff was entitled to FMLA leave.
Moving on the ADA claim, the court again denied summary judgment because the employer did not engage in the “interactive process” to determine whether the Employee needed an accommodation:
Here, when the facts are construed in Plaintiff’s failure, a reasonable jury could conclude that Defendant wholly failed to engage in an interactive process and failed to make any effort to reasonably accommodate Plaintiff’s condition. The Sixth Circuit has recently stated that “the failure to engage in the interactive process” can be “an independent violation of the ADA.” And, there can be no doubt that an alleged non-discriminatory reason for termination is pretextual if the real reason is that the employer did not want to make a reasonable accommodation to a known disability.
In the end, the major pitfalls for the employer in this case were largely the result of its own inaction. First, it neglected to provide the employee with notice regarding her FMLA rights. Second, the employer failed to engage in a discussion with the employee regarding possible reasonable accommodations for her disabilities. These omissions directly led to a denial of the motion for summary judgment and a win for the employee.
Having to live with a disability is difficult enough without worrying about the effect it may have on your job. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, call our Ohio employment law attorneys at 866-797-6040. The best option is not to wait. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
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