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Question on Americans with Disabilities Act vs. FMLA

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beyurslf Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 10:38 AM
Original message
Question on Americans with Disabilities Act vs. FMLA
My work has a new policy in place that states we can not miss work more than 3 times in any 6 month period or we will be written up. Once you are written up, the 6 month period start over form that date and all absences are counted form that day forward. (In other words, you can't miss work again for 6 months.) An absence form work is any unplanned day off work. It includes a visit to the doctor or dentist (even though this is planned time). A visit to the doctor may not be counted if you use personal days but you only get one in the year. Two times being late more than 5 minutes equals one absence.

Here is my question:

I am HIV+ and go to the doctor every other month. I am usually gone for 2-3 hours. Obviously, I will use up my personal day quickly. After that, it will not take long before I have used all of my "approved absences." I told my supervisor that I am covered by ADA (true, I looked it up) and had my doctor write something that says I see her every 1-2 months for treatment of a chronic illness.

I thought that should be sufficient to let me go to the doctor and not have it used against me. The management has said I have to fill out a health certificate with my doctor every time I need to leave for an appointment and file it with FMLA. The certificate is 5 pages and goes into my medical history way beyond what is needed. The form also requires me to sign an authorization to see a doctor of their choice at their will. The release includes the release of any tests that their doctor feels I should undergo.

I see the best doctor in the state for HIV treatment. She is nationally recognized as one of the pioneering doctors in this field. There is no way they could find a doctor who would give me better treatment. I am not "unheathly." I do not miss work. I just want to be able to go to the doctor, have my tests ran, and know that I will be fired for it.

I still think the ADA covers this. (No discrimination for persons with disabilities. I know that in Bragdon vs. Abbott the Coruts rules that even asymptomatic HIV (not sick) is covered by ADA.) But what about this FMLA thing they are making me do.

I have messages in with EEOC and an attorney here but have not heard back. I have a meeting with supervisor this afternoon to go over monthly goals. Any input is greatly appreciated!!
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tkulesa Donating Member (556 posts) Send PM | Profile | Ignore Thu Feb-05-04 10:42 AM
Response to Original message
1. One letter from an Attorney
saying, "He has a chronic medical condition and his need for periodic medical treatment is protected under the ADA" will probably do it. No HR department wants to risk that kind of trouble.
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Punkingal Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 10:43 AM
Response to Original message
2. Take the FMLA...
It is absolute protection for you. I worked at American Airlines where the attendance policy was very strict, and the FMLA overrides a company's attendance policy. The people who were on it never had a problem. You just have to get a doctor to fill out a form, and you have to have worked 1250 hours in a year's time to qualify.

It is a job-saver, believe me.
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beyurslf Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 10:57 AM
Response to Reply #2
6. The only problem is the paperwork they gave me has to be filled out every
time I miss work. It is for extended absences due to a chronic condition. Missing 3 hours of work every other month is not extended absences. I can't ask my doctor to take the time to fill out 5 pages of paperwork every time I see her.

And the FMLA paperwork requires the disclosure of the nature of my disabilty and requires me to allow them to chose a doctor and submit to any tests that doctors request. I don't think my blood work is any of their business nor are any of my other medical records, which I must also release with this form.

No, I have not filled out anything for FMLA. I do not want to. The ADA specifically states that I do not have to disclose the specific nature of the disability if I am not asking for undue accomodations. I do not believe that 3 hours every other month is undue. I should point out that we are given 10 sick days a year as a "benefit" and I have plenty of vacation that I can use also for the apointments.
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liberalnurse Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 10:44 AM
Response to Original message
3. My understanding is that you should not be
Edited on Thu Feb-05-04 10:45 AM by liberalnurse
penalized if the FMLA is in place. The employer can not implement a new policy to circumvent the FMLA Act. Have you filed your FMLA paperwork? I'm assuming you already have and now a new employer rule/policy is written.....
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Cannikin Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 10:44 AM
Response to Original message
4. I'm going through the same thing....
Edited on Thu Feb-05-04 10:48 AM by Cannikin
I'm having some stress related illnesses (now what would a gay man have to be stressed about? Hmmm.) It has caused me to miss more than the 6 unexcused absences from work. Knowing that I was going to eventually miss more time, my boss gave me the option of writing me up for my 'occurrence's or to have my Dr. fill out the FMLA paperwork. That way, the absences to not count against me as long as the absence is related to the condition stated in the FMLA forms. Now if I call in for a cold or some other illness not listed on the FMLA, it WILL still count against you. I'm required to bring a note stating the absence was related to the FMLA condition.
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jedicord Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 10:53 AM
Response to Original message
5. Also, Don't Forget the New Patient Privacy Law
Your employer is not allowed to know of your specific health problems, and they shouldn't be involved in any way with treatment (or judgement thereof). A letter from your doctor specifying an ongoing illness is almost stretching, just a note from your doctor saying you had an appointment. I believe the law is called "HIPAA", or something like that.

Any lawyer would grab at your case, I would think.
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beyurslf Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 11:02 AM
Response to Reply #5
7. HIPPA?
I will have to look at that. The paperwork they sent me not only asks for the specific nature of the illness but also asks for treatment. It requires disclousures be signed by me for the doctor to release my medical HISTORY to them. It requires that I see a doctor of their choice and submit to any tests for that doctor. It requires that the results of those tests be made available to them.
It requires that I fill this out EVERYTIME I will miss work for an appointment.
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Punkingal Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 11:10 AM
Response to Reply #7
8. The FMLA paperwork....
id filled out once, and is in place for a year. You don't have to fill out anything once it is in place, and you are protected from any problems with absences.
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Shakespeare Donating Member (1000+ posts) Send PM | Profile | Ignore Thu Feb-05-04 02:11 PM
Response to Reply #7
10. It's HIPAA -- what state do you live in?
I may be able to get you some specific info. You should not have to disclose any specifics on your illness--your employer is VERY close to having an illegal policy (if it isn't just outright illegal already).
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Arbustosux Donating Member (769 posts) Send PM | Profile | Ignore Thu Feb-05-04 01:51 PM
Response to Original message
9. I am a Director of Human Resources
Get yourself approved under FMLA, what you want is intermitent leave.

That will enable you to obtain your needed weekly treatment w/o any fear of repercussion. If they insist on a physician's note every time you go, then seek legal redress. Its one thing to require a physician's note to prove you were there, its another to require re-certification for each use of intermitent leave. This could be construed as an indirect attempt to deny you FMLA leave.

By the way, a little factoid for you....under current FMLA you can take each friday (the whole day) off every week for the rest of your employed life with the company and there isnt anything they can do if you are certified for intermitent leave. This is because the leave is calculated on a rolling 12 month calculation.

I hope this helps. Good luck. You are the kind of case the intermitent leave provision was intended to assist.
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