Health issues and productivity

[9791]

What is the name of your state?NC
I have a couple of heath issues, one is permanent and was present when I was hired. The other is hopefully temporary. I'm seeing several doctors, changing meds and etc. I know these issues have affected my productivity at work some, but not to the degree the supervisor is trying to imply (as witnessed by my coworkers). He gave me a company Accommodation request form, that states I'm asking for changes to be made to accommodate me. I'm not comfortable at the moment filling out this request, because I never asked for anything to be changed. I'm afraid this form could be used against me. I've been open about my conditions, and the meds/treatments. I'm just not sure what to do.

 

[Just Blue]

I am tagging out HR experts to assist you.

@cbg @commentator

 

[cbg]

A couple of questions:

1.) How long have you worked for this employer?
2.) How many employees are there within 75 miles of your location? If you don't know for certain, over or under 50 will do.
3.) In the last 12 months, have you worked a minimum of 1,250 hours for this employer?
4.) Understanding that you are not the one suggesting accommodation and setting aside (for the moment) your fear that the request would be held against you, are there accommodations that would allow you to resolve your productivity issues?
5.) Would a brief leave allow you to resolve your productivity issues?

There are two different laws that are potentially in play here that might offer you some protection. However, I do need to warn you. Under NO law is the employer required to accept a lower level of productivity than they would accept in an employee with no medical issues, and if there is a reasonable accommodation that would allow you to complete the essential functions of your position to standard, THAT is your best option to keep your job. Refusal to sign because you're afraid it might be "held against you" in future is, quite frankly, cutting off your nose to spite your face. It's the accommodation that's going to protect you.

So, if you'll answer the questions above and tell me what kind of accommodations they're offering you, we can go next steps.

 

[9791]

1 Almost 10 years
2 A few hundred overall
3 Yes
4 The form asks what accommodations I would requset; the employer has not offered any suggestions. My job is manual labor, so I'm not sure.
5 Not sure

 

[cbg]

Then I would recommend that you consult with your doctor.

The two laws I referenced are the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). FMLA refers to time off work; the ADA refers to accommodations on the job. They are not mutually exclusive but at the same time, the criteria for eligibility are not the same. It is possible to be eligible for one but not the other; it is also possible to be eligible for both (or neither).

You meet the criteria for FMLA, which means that you could take up to 12 weeks of protected medical leave - IF your condition qualifies under the FMLA statute. Your doctor will know if it does or not. If it does, you cannot be fired or otherwise treated adversely BECAUSE you took the leave. However, FMLA does not protect you from a termination or an action that would have happened whether you took leave or not. I mention FMLA only in the interests of being thorough - I really don't think FMLA is going to do you much good unless that leave is going to allow you to return to work with your productivity issues solved. Discuss it with your doctor.

Outside of confirming that your employer is subject to the ADA (which it is, based on your answers above) it's not possible for a message board to determine how to apply the ADA. Under the ADA, if you have a qualifying disability (and we do not know if you do or not; the temporary one is not since temporary disabilities are not covered under the Act but the permanent one may or may not be - we can't say based on what we have) you are entitled to a REASONABLE accommodation that will allow you to perform the essential functions of your position to standard. Remember what I said above; there are NO circumstances under ANY law where an employer is required to accept sub-standard work.

You are not required to complete the form under the law. However, if you do not, you have no protection under the ADA. (You may not have any with the form, depending on circumstances a message board cannot assess, but you definitely have none if you don't.) If your productivity issues have reached the point where your employer is voluntarily offering to provide an accommodation, that's not a good sign for your continued employment without whatever protection you can get. Keep in mind that the onus of providing FMLA protections is on the employer, but it's up to you to ask for protection under the ADA. The employer is not required to assume such protection is needed. So they're already doing more for you than the law requires, just by offering you the opportunity to request an accommodation

What I'm getting from your post is that your work product is sufficiently poor that your employer is having to consider taking action, but you are well enough thought of that they don't want to fire you outright. It's not your evaluation of your work that matters, it's theirs. So take that form to your doctor, Ask him if he thinks either law is applicable, and what accommodations would be reasonable. Then complete the form and take it back to your employer. It's not by any means a guarantee, but frankly, completing that form is the best option you've got.

 

[cbg]

I found the following in a post I wrote several years ago regarding the ADA. It all still applies.

The employer is never required to:

1.) Removing an essential function of your position
2.) Accept substandard work that would not be acceptable in a non-disabled employee; likewise to accept behavior that would not otherwise be acceptable
3.) Create a new job within your limitations
4.) Bump someone else out of their position for you
5.) When there is a legitimate seniority system or standard system for promotion, skipping you over the heads of those who would normally be moved.
6.) Moving you into a position for which you are not qualified

However, if there is a legitimately open position that would have to be filled anyway AND which you are qualified for AND which is within your medical restrictions, one potential reasonable accommodation would be to transfer you into that position.

If, after making a sincere effort to accommodate your limitations, there is no reasonable accommodation that can be made (OR if the ADA does not apply) then yes, you can be terminated for a health reason.