Disciplinary Action for poor job performance after return from surgery under FMLA.??
Question: I was out of work for a month for treatment and surgery for Adult Onset Hydrocephalus. Three weeks back to work, and I receive a corrective action for my poor job performance in the weeks leading up to my leave.
Because people with Hydrocephalus often have symptoms such as loss of cognitive skills, personality changes, sleeping disorders or unable to wake, mentally checking out, all of which I suffered, I received a corrective action 10 weeks AFTER the fact.
I’m healthy and feel great now, and my employer knew what was happening every step of the way during my convalescence.
I am really hurt by this. Is there any protection for me under FMLA or Americans with Disabilities act? I have a chronic progressive condition that cannot be cured but can be successfully treaded. I don’t want this is my permanent file (except in the form of Medical documentation)
I didn't do anything crazy, now. Was just very lethargic and stayed in my office.
Can I do anything to protect myself?
Answers: Let's say, for example, you hired an attorney to represent you in court. The day of the trial, however, the attorney wasn't feeling well. Instead of standing up an representing you and your case, he just sat there. This would be unfair to you wouldn't it?
Well, this is how it appears to an employer. If you are no capable of giving 100% or you effort, it is best to not show up for work, than to show up an make a lousy effort. The truth is, this type of situation happens to hundreds of people each year during cold and flu season. They are forced to go to work; no sick leave or personal time off, the only way the are able to make their financial obligations is to show up for work everyday, no matter what. Once they are there, they are feeling miserable and if Tylenol Daytime or DayQuil doesn't work well enough, they must take that chance.
So, my advice to you is to not make such a big deal about this corrective action and be more careful next time. There have been many people who have been terminated because of the inability to do their job - eventhough descrimination is illegal - by their employer, because of the what I call the big man vs. little man complex (this is when litigation takes so long, most ordinary people can not afford the long, exhaustive legal battles against big companies).
If your doctor have not discussed to you your options for disability, you should do so. He/she can also discuss with you any alternative treatment that may help you combat these symptoms while you are at work.
Don't mean to sound unsympathetic, but this is the truth!
FMLA only provides you with up to 12 weeks of unpaid, job-protected leave for your own serious medical condition, the serious medical condition of an immediate family member (spouse or dependent child) or the birth or adoption of a child. It does not address pre-leave performance or discipline.
The only way the FMLA could *maybe* address your situation is through the anti-discrimination provisions of the FMLA, which are traditionally very difficult to enforce. The FMLA and the accompanying regulations (Title 29, United States Code of Federal Regulations, Part 825) don't specifically address post-return conduct for pre-leave events, but you can contact the US Department of Labor's Wage and Hour Division, the agency that has enforcement responsibility for the FMLA. You can reach them via the internet at www.dol.gov, or by telephone toll-free at 1-866-4US-WAGE.
I would sooner say that your issue would be addressed by the ADA, and that you should contact either the EEOC of DOL, or, if your employer has any contracts with the federal government, the Office of Federal Contract Compliance Programs (OFCCP).
Hope this helps.
I would tell you to talk to a lawyer to find out if you have any protection from events like this one
Because people with Hydrocephalus often have symptoms such as loss of cognitive skills, personality changes, sleeping disorders or unable to wake, mentally checking out, all of which I suffered, I received a corrective action 10 weeks AFTER the fact.
I’m healthy and feel great now, and my employer knew what was happening every step of the way during my convalescence.
I am really hurt by this. Is there any protection for me under FMLA or Americans with Disabilities act? I have a chronic progressive condition that cannot be cured but can be successfully treaded. I don’t want this is my permanent file (except in the form of Medical documentation)
I didn't do anything crazy, now. Was just very lethargic and stayed in my office.
Can I do anything to protect myself?
Answers: Let's say, for example, you hired an attorney to represent you in court. The day of the trial, however, the attorney wasn't feeling well. Instead of standing up an representing you and your case, he just sat there. This would be unfair to you wouldn't it?
Well, this is how it appears to an employer. If you are no capable of giving 100% or you effort, it is best to not show up for work, than to show up an make a lousy effort. The truth is, this type of situation happens to hundreds of people each year during cold and flu season. They are forced to go to work; no sick leave or personal time off, the only way the are able to make their financial obligations is to show up for work everyday, no matter what. Once they are there, they are feeling miserable and if Tylenol Daytime or DayQuil doesn't work well enough, they must take that chance.
So, my advice to you is to not make such a big deal about this corrective action and be more careful next time. There have been many people who have been terminated because of the inability to do their job - eventhough descrimination is illegal - by their employer, because of the what I call the big man vs. little man complex (this is when litigation takes so long, most ordinary people can not afford the long, exhaustive legal battles against big companies).
If your doctor have not discussed to you your options for disability, you should do so. He/she can also discuss with you any alternative treatment that may help you combat these symptoms while you are at work.
Don't mean to sound unsympathetic, but this is the truth!
FMLA only provides you with up to 12 weeks of unpaid, job-protected leave for your own serious medical condition, the serious medical condition of an immediate family member (spouse or dependent child) or the birth or adoption of a child. It does not address pre-leave performance or discipline.
The only way the FMLA could *maybe* address your situation is through the anti-discrimination provisions of the FMLA, which are traditionally very difficult to enforce. The FMLA and the accompanying regulations (Title 29, United States Code of Federal Regulations, Part 825) don't specifically address post-return conduct for pre-leave events, but you can contact the US Department of Labor's Wage and Hour Division, the agency that has enforcement responsibility for the FMLA. You can reach them via the internet at www.dol.gov, or by telephone toll-free at 1-866-4US-WAGE.
I would sooner say that your issue would be addressed by the ADA, and that you should contact either the EEOC of DOL, or, if your employer has any contracts with the federal government, the Office of Federal Contract Compliance Programs (OFCCP).
Hope this helps.
I would tell you to talk to a lawyer to find out if you have any protection from events like this one
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