[Link]

OK, I am up late with some moderate pain (the worst is over I think) and I can’t sleep so I thought I would ask if anyone has any advice or experience with an issue I am having with work. Sorry this is a long one:

I am a Financial Analyst and work for a bank here in Arizona. About two months ago I requested to work from home when I am having symptoms caused by Crohn’s disease (all or a combination of; severe abdominal pain, anal bleeding, diarrhea, and bowel incontinence). During these occurrences I can’t make it to the office very often but I can sit or lay down in front of a computer and complete work.

Working from home is a reasonable request since several employees in my department (who have different positions then me) have been working from home as a ‘pilot' for the last several months. My manager does a lot of work from home doing the same analyst type assignment that I do. So I know it can be done with out “undo burden” to the bank and would not significantly impact my work, if at all.

However, my employer just last week (after dragging their heals on the issue for 2 months) just informed me that they will not allow me to work from home - no reason given other then they are not interested in extending the work from home pilot at this time .

Needless to say I was both hurt and outraged by the decision . It’s not like I am asking because it would just be more convenient for me – this is the only way I can work during these flare ups. Maybe I could get by if work provided disability insurance or if I had any sick time left. But right now if I can’t show up for work I don’t get paid. To make matters worse, I have a fistula that make my symptoms that much worse and more persistent . I haven’t been able to show up to work consistently since October, and since December I have lost over $4,000 in just missed work alone.

I have tried every Crohn’s/UC/IBS diet that exists but I will still have one combination of symptoms or another. In desperation I have stopped eating except for small meals on the weekends. This is the only way I can get all of the symptoms to a manageable level to be able to work at the office. But I can’t see this as a long term solution . I think I may be left with no other option other then pursing a legal remedy under the Americans with Disabilities Act (ADA) to be able to work from home.

ADA of 2008:
1) Now covers disabilities like crohn’s disease (http://www.wearecrohns.org/do/articles/1634)
2) States that employer must make reasonable accommodations for employees who are disabled, including working from home if necessary.(http://www.eeoc.gov/facts/telework.html)

However, I have two concerns:
1) I do not have a solid diagnosis (waiting for more tests), but I do have FMLA paperwork already completed and submitted (I don’t know if this is sufficient or not).
2) I am a bit nervous about biting the hand that feeds me .

Any thoughts?
Thanks,

-Link

[Dannit]

Have you spoken to HR?

[Link]

Dannit, on 08 February 2010 - 07:52 AM, said:

Have you spoken to HR?

Someone from HR was supposed to get in contact with me last week (never did) to relay the same "no" decision. The only reason HR was going to contact me in the first place was because I made such a issue out of the entire situation with my manager. I even threatened to file a suit under ADA. My manger only responded by saying "I don't know you qualify as fully disabled." This "full disability" none-sense is not an ADA term, you only need to have a disability and since 2008, IBS, crohn's, and UC have qualified for coverage under ADA disability. I am more upset that instead of doing the right thing, which is almost the bank's motto, HR and Sr management have decided that doing nothing is more inline with business interests. I just take it as a life lesson: you have to fight for your rights. I am meeting with an attorney later this week. I'll have to see what he has to say...

[Dannit]

I can understand your frustration, but it may be worthwhile taking a more conciliatory approach with HR, even while you are talking to your lawyer. Sometimes it helps to speak softly, even if you are carrying a big stick.

[Link]

Dannit, on 08 February 2010 - 06:27 PM, said:

I can understand your frustration, but it may be worthwhile taking a more conciliatory approach with HR, even while you are talking to your lawyer. Sometimes it helps to speak softly, even if you are carrying a big stick.

That is wise. I think that will be the plan for now. I spoke with a attorney who would not take my case only because there is not enough money in the suit to make it worth while. But he advised me to contact the EEOC and file a complaint. So I have all the paperwork filled out and I will meet with the EEOC tomorrow. We'll see if I can come out of this OK or if I am going to lose my job in this process...

[SeattleDoug]

If you have already filed the FMLA and they fire you, you will have a very good case to take the bank to court over. FMLA covers you for up to 12 weeks in a calendar year. Pursue the disability route as you wait for the diagnosis to be completed. The worst they can say is "no".

I hope this works out for you. I lost over $15,000 in wages and had a $30.000 hospital bill for surgery last year because of a back injury. I'm still trying to recover from that.

[cartech]

If you were not part of the pilot program for whatever reason then they owe you nothing. They picked the people they did for reasons that are theirs and you have no say. You can ask if you can be included but they can deny you and they are well within the law. It's not the fault of the company you have a medical concern and the only thing they need to provide you is a work enviroment that meets the standards of the disabilities laws. A firm diagnosis and a written letter from a medical professional may or may not be enough. Case in point, if you are a carpenter and by no fault of the company you lost your arms. That means you can no longer perform your duties. The employer is not compelled to make a job for you where you don't need your arms. You can be released from the company and they have no liability. It's just a bad deal for you.

Some employers will try to work with you and with the time off you have had it seems as though they are by not replacing you with someone else. Might want to count you blessings in that regard.

Please don't feel that I'm against you because I'm not. I am an employer with medical conditions of my own. I just think that you may be able to gain more by honest talk with your employer and not a lawyer. Seek out someone in the medical profession that can help you.

[Link]

cartech, on 11 February 2010 - 06:19 PM, said:

If you were not part of the pilot program for whatever reason then they owe you nothing. They picked the people they did for reasons that are theirs and you have no say. You can ask if you can be included but they can deny you and they are well within the law. It's not the fault of the company you have a medical concern and the only thing they need to provide you is a work environment that meets the standards of the disabilities laws. A firm diagnosis and a written letter from a medical professional may or may not be enough. Case in point, if you are a carpenter and by no fault of the company you lost your arms. That means you can no longer perform your duties. The employer is not compelled to make a job for you where you don't need your arms. You can be released from the company and they have no liability. It's just a bad deal for you.

Some employers will try to work with you and with the time off you have had it seems as though they are by not replacing you with someone else. Might want to count you blessings in that regard.

Please don't feel that I'm against you because I'm not. I am an employer with medical conditions of my own. I just think that you may be able to gain more by honest talk with your employer and not a lawyer. Seek out someone in the medical profession that can help you.

Cartech,

I know where you are coming from and I realize it is not my employer's fault that I am having these difficulties. However, if an accommodation can be made by an employer for a disabled employee that would allow him/her more functionality in their job with out causing undo burden, then the employer is bounded by ADA law to make the reasonable accommodation. This is not my take on the situation, it is simply the law in all states and enforceable by the EEOC. My quest to work from home at (least on a part time basis) falls within the guidelines of a reasonable accommodation without cause of undo burden to my employer. My personal take is that I am restricting what I eat, working much later then usual (when I can), wearing diapers, managing my abdominal discomfort/pain, and doing what ever I can do to be as productive as possible - my employer should at least work to meet me part way to help out if they reasonably can. And while I count my blessings that I am employed I can guarantee there would be a lawsuit of epic proportions if my employer decided to replace me. I am protected from being fired due to my medical condition by FMLA and ADA laws. Besides I should have a firm diagnosis and a treatment for this medical issue by the end of the month, so hopefully this will be a non-issue soon.

Now, this business with having an honest talk with my employer... This was the first thing I tried, and I was met with a "were not interested in extending the pilot program, even with you medical condition" response, and "There will be no reconsideration, the decision has already been made" side note. So, I spoke with the EEOC and filed a complaint against my company. Amazingly enough, HR contacted me the same day and wanted to talk (imagine that ). The HR rep stated that the company does not have to allow me to work from home since the bank does not have a official work from home program, just a pilot. Again, this is false! ADA states that a work from home accommodation is enforceable even if the company currently does not have a work form home program. (If you don't believe me you can look it up for your self on the EEOC's website http://www.eeoc.gov/...s/telework.html ) So again, I am not trying to pull anything over on the bank, I am just fighting for my legal rights weather or not you believe in them.

As far as your example with the carpenter with one arm (I revised your example a little to make this point), ADA would step in on two levels:
1) If an accommodation could be reasonably made, for instance if all the carpenter needed was a nail gun to do his job with just one arm. (And no, it does not matter if the company has a nail gun pilot program or not )
2) If an accommodation could not be reasonably made (say he still could not do his job even with a nail gun), then it would be the responsibility of the employer to find him another job within the company that is open that the carpenter could do and is qualified for. For example maybe he could be a truck driver for the construction company. In this cause (if he was qualified and if there was an opening) the employer would have to allow the carpenter to be a truck driver at the pay grade of a truck driver (which may be more or less then he was making before).
Now if there was not another opening the carpenter was qualified for, and he could not do his job even with an accommodation, the employer could terminate the carpenter's employment if and when the FMLA time expired (in 12 weeks).

You mentioned you are an employer, you may want to brush up on ADA and FLMA law if you employ more then 50 people. This may save you from a costly lawsuit down the road.

-Link

[cartech]

And brush up I did....without going into a longer discussion that you will not like the outcome I can gurantee you that they owe you nothing at this point. No sense in looking for what is not there. You are not disabled because by you own admssion: 1) I do not have a solid diagnosis (waiting for more tests), but I do have FMLA paperwork already completed and submitted (I don’t know if this is sufficient or not). And when and if you do it would be up to a judge to decide if you would qualify. Tick the employer off enough by incurring atty. expenses there would be a thousand different reasons for them to get rid of you all without anything to do with your current problem. Think about that long & hard and argue that out in the mirror long before you argue that here or in the courtroom. You may not like that fact but in in todays world it's reality

[Link]

cartech, on 11 February 2010 - 09:03 PM, said:

And brush up I did....without going into a longer discussion that you will not like the outcome I can gurantee you that they owe you nothing at this point. No sense in looking for what is not there. You are not disabled because by you own admssion: 1) I do not have a solid diagnosis (waiting for more tests), but I do have FMLA paperwork already completed and submitted (I don’t know if this is sufficient or not). And when and if you do it would be up to a judge to decide if you would qualify. Tick the employer off enough by incurring atty. expenses there would be a thousand different reasons for them to get rid of you all without anything to do with your current problem. Think about that long & hard and argue that out in the mirror long before you argue that here or in the courtroom. You may not like that fact but in in todays world it's reality

I already filed a complaint with EEOC against my employer, and met with an EEOC investigator. In my interview with the investigator she stated that I did qualify for disability even with out a solid diagnosis (no judge needed, just a doctors letter explaining my symptoms). Further into the interview the investigator explicitly told me that if I was retaliated on by my employer (suddenly fired, demoted, harassed) that I need to come back to the EEOC office so an investigation could be launched. So if my employer does take an adverse action against me it better darn well have a very good, clear, documented reason . In any case I know you are just giving me the advice you think is best, and I appreciate it . I was a bit nervous at first, but now that the process has began and I know more about how this works I feel that it will come to a positive conclusion.

Thanks again,

-Link

[cartech]

I wish you well and hope it all works out for you