ada question- my daughter has epilepsy

[mopinko]

and is still getting her meds adjusted. she is on ssi, but it is not much.
she has had a job for 6 months, in a bakery. she loves her job. they love her.
the management has been aware of her condition, but apparently word had not made it to the owner.
the other day, when she was changing med doses, she asked a coworker to keep an eye on her, as it made the chances of a seizure greater.
well, with this word made it to the top.
she received an email last night telling her that she could not work until she got clearance from her doctor.
if she cannot clear this up today, she will likely end up missing 4 days of work.
she cant afford that.
so, question is- is this legit?

i am afraid that even if she gets it straightened out, she will end up losing the job. up to this point they love her. but she has had to leave work early a couple times due to related issues, tho not connected to seizures.
she asked for an exemption from the attendance policies. in her six months she has missed a couple days to a bad cold, but has gone home early twice and been late once.

she has gotten glowing reviews, and has developed a regular clientele. she gets mentioned by name in online reviews repeatedly. and she just asked for a raise, and they were very receptive.

i feel so bad for her. she really WANTS to work.

worst of all, she got the email during a break in a drawing class that she and i are taking together. she was so excited about the class, and i am pissed that this has overlapped onto that.

advice?

[MannyGoldstein]

1. Very, very sorry to hear about this situation.

It's not difficult enough to have a disability, there's all of this kind of stuff to deal with! It's totally unfair.

I'm not a lawyer and not up to speed on ADA, but my wife and I do have volunteer work to help families of kids with disabilities to deal with school districts which mainly falls under different laws and regulations (IDEA). So I'm almost totally not qualified to give advice.

That all being said... I think the employer is concerned that she might get hurt. I don't know what goes on behind the scenes at bakery, but I'd imagine the bakery believes that there's the potential for your daughter to get hurt if she has a seizure, so I suspect there's no quick legal remedy. I'd check the law, but the law for this kind of thing is generally a safety net that covers what happens when "people stuff" breaks down. I'd focus on making the employer comfortable that your daughter will be OK on the job, and get that clearance ASAP.

It sucks, but I suspect there's no instant fix.

And hopefully you can get some advice from someone who actually knows what they're talking about!

Good luck to you and your family!

[SheilaT]

2. Call her doctor and get the note.

Companies have the right to require their employees be healthy enough to work, although that's often overlooked when employees show up with a cold or the flu.

Asking for an exemption from attendance policies can come back to bite her. Fellow employees can become very resentful, which isn't good. Do other employees also leave work early on occasion? If so, that's essentially a non-issue. Good for her for not going in when she had a bad cold. And only being late once is just about exemplary.

She needs to have a good talk with the management, especially since they seem quite comfortable with having her there.

My knowledge of how SSI works is quite limited, but does her working impact that?

[mopinko]

6. she has to report her earnings.

the problem i have with it is her medical privacy. this is not the flu, this is an ongoing and serious illness.

the other employees really like her, and have sworn they would stand up for her if there was any blowback to her absences.
she really is good at her job, which is the front counter/sales. she is hands down their top seller. she gets a commission, but it is pennies.

unfortunately she has also recently blocked out 2 days of the week that she cant work. shouldnt be a big problem, as she mostly works weekends, and the days, t-th are slow days. thursdays is our class day. tuesdays is so she can get back into therapy, which she really needs. she doesnt want to tell them why. i cant blame her. not sure what she told them about it, just know it is not the whole story.

[R.A. Ganoush]

3. I can help but need some more information

Is she employed through any particular state program for individuals with disabilities?

How many employees does the bakery have?

What state is it in?

I can probably give better info if I know these answers.

[mopinko]

4. no program

think they are only about 20 employees. small company.
this is illinois.

[R.A. Ganoush]

8. OK, good

The headcount is important because ADA only applies to companies with 15 or more; otherwise we'd have to see if IL has similar protections (e.g. in NY, companies with under 15 employees are covered by the NYS Human Rights Law, whose disability provisions mimic those of the ADA).

Technically, under ADA, they cannot arbitrarily require her to get a doctor's note stating fitness for duty and keep her from working until it's provided. By doing so, they're making potentially discriminatory assumptions about her condition and ability to work (i.e. they're "regarding her" as being disabled). Now, I doubt they're motives are nefarious, but small employers just don't have the resources or understanding of the law to really know what to do.

The proper procedure should be that her employer has a discussion with her first. This is referred to as the start of the "Interactive Process" under ADA in order to determine if a Reasonable Accommodation is necessary. They should provide her with a copy of her Job Description, and a medical certification request to give to her doctor. This form is similar to the FMLA Medical Certification, except that it is crafted to target the specific situation being evaluated. Unless she has a Description, how can the doctor assess fitness for duty?

Also, because this form contains Protected Health Information under HIPAA, the employer is restricted in who can view this information, and should have a policy designating who is entitled to view medical information. If they don't I'd look into a HIPAA release form.

The doctor would review the Description and questions, and determine if your daughter is capable of performing the "essential duties & responsibilities" of her position (few small businesses do this right). He would note any accommodations necessary and return the form to your daughter. She would return it to her employer ad they would have to determine if the accommodations amount to an Undue Hardship. In the case of your daughter, the need to have a fellow employee observe her for detrimental effects, or occasionally needing time away from work can hardly constitute Undue Hardship and would have to accommodate her. Current case law is allowing for Leaves of Absence for up to a year under ADA, so this certainly is less of a hardship than that.

Granted, this is a process that rarely happens quickly. It typically takes about 2 weeks to follow all the steps properly. If they insist that she cannot work without a release, I'd simply mention the potential ADA violations to them in an attempt to let them know you're no pushover, and hopefully they'd relent.

Obviously, you have to balance the effects this has on the work environment. By law, employees who seek assistance under ADA or any of the other laws under Title VII of the Civil Rights Act are protected from any retaliatory action. I wouldn't worry so much about co-workers as much as the higher-ups.

ADA isn't an easy law to understand or comply with. I've been doing compliance guidance for small businesses for 12 years, and I'm still learning new nuances every day. If anything isn't clear let me know and I'll try to clarify when I get a chance.

You can also use this link to the EEOC page on disability discrimination for guidance as well. http://eeoc.gov/laws/types/disability.cfm

[MannyGoldstein]

9. !

[pinto]

5. (Though I have some experience, this is a layman's point of view.) Agree with Manny.

Safety / liability concerns likely come into play here. For all concerned. A visit with the neurologist that works with her on managing her seizures seems appropriate. She can present the situation, outline the details of her duties on the job and request a medical clearance for work.

(aside) I have a seizure disorder. After my 3rd seizure, iirc, my MD had to report the events to the Department of Motor vehicles. CA State law. Safety / liability concerns were a big part of my situation. For all concerned. My license was revoked, a decision I understood and actually supported. Seizure while driving - mmm, that's a pretty clear call. But that's far from your daughter's situation, I assume.

Your daughter's situation seems another ball of wax. Sounds like a great employee doing a job she loves. And it sounds like she has supportive co-workers. So perhaps the medical clearance is actually a good thing to have on file. For all concerned.

Hang in there mopinko! All the best to you both.

[mopinko]

7. thanks. the sad thing is

this whole thing has unwound slowly. turns out she has been having seizures all her life. her brother accidentally broke her skull when she was 4. talk about dont tell mom. i never knew. but it took all this time to put the whole thing together. (she is 21)
she had a lot of psyche-type symptoms that turned out to be seizures.
she and i are both so happy for her to finally be getting better. it seemed like the light at the end of the tunnel.
sigh.

driving is a thing. the only bad part about the job is that it is an hour and a half of public trans each way. for a 4 hour shift. she is really hoping to get under control enough to drive. it is about a 20 minute drive.
in the meantime, they are talking about opening another location that is much easier and she had her fingers crossed for a management job, or at least a big raise to move.

poor kid. seems like every time she dares to hope her body bites her in the ass.

i remember your seizures. it is hard to lose driving privileges. it drove my mom over the edge into infirmity when she has a bad hip replacement that took away control of her right foot. at least it was clear cut, and not something that we had to fight her about. but it really took away so much.

[happyslug]

10. Employers can NOT discriminate against disable people UNLESS it affects the ability to work

And that is the heart of this dispute. Can your daughter do the job? and that includes AVOIDING getting hurt on the job. The burden is on the EMPLOYER to show that she is in danger, but the employer can cite your daughter's statement that she was in danger (i.e. if your daughter gets a letter from her doctor that she can do this type of work, the burden will be on the employer that she can not, a burden that would be hard for them to prove without medical evidence).

Thus the employer has the RIGHT to ask for medical documentation that your daughter can do the work (and that includes knowing about any seizures that would cause problems around machinery).

You did not say if your daughter had grand mal or petit mal seizures. I am assuming petit mal (Which have been described as a computer that locks up and needs to be shut down and rebooted). I make this assumption for she is working in a bakery and that means working around machinery and in cases of Petit Mal that can be done, but NOT in cases with Grand Mal Seizures. Also everyone sees when someone goes into a Grand Mal Seizures, but you have to look to see if someone is in a Petit Mal for in a Petit Mal you end up staring into space for your brain has locked up).

Now, excess absenteeism is grounds for termination. That includes excess absenteeism even if the excess absenteeism is do to sickness or other good cause. Excess absenteeism can show an inability to do that type of work. Now excess absenteeism is missing more then one day a month on a CONSTANT BASIS. Missing one day a month on the average is NOT grounds for termination in most cases. Missing a bunch of days do to a medical condition is also NOT excess absenteeism (i.e. if you miss work for a month do to surgery or other illness that is NOT excess absenteeism even if you average it out on a year basis it is more then one day a month). The key is CONSTANT basis and from what you are telling me that is NOT the case with your daughter.

Now, you say your daughter is on SSI. She should be getting $741 plus any state supplement your state adds to the $741. The $741 is REDUCED by any income she gets doing the month. If the income is from Employment the GROSS employment income is reduced by $30 then 1/3 of the remainder is subtracted from the gross, then what is left is use to reduce her SSI dollar for dollar. i.e if your daughter's GROSS income is $630 a month, you subtract $30, to come to $600, then you divide that by 1/3 which is $200 and then reduce the $600 by that $200, That leaves $400, which is used to reduce the $741 to $341.

GROSS: $630
Less.......-30
............$600.. 1/3 of $600 is $200
Less......$200
............$400

SSI amount $741
less............$400
She gets....$341

Please note, your daughter's income for February will be used to reduce her SSI for May, the reduction is done two months after the income is earned.

Also, your daughter's SSI can be reduced by "in kind assistance" i.e. when parents do NOT charge her rent. That is considered "In kind" Assistance and is used to reduce her SSI amount. Thus if you do NOT charge her rent, Social Security can say that is the same as $150 in money given to her, so her SSI will be reduced by that $150. The way around this is always tell SSA that you are charging your daughter rent if she lives at home with you. $150 is generally enough to avoid that you are providing your daughter room and board as "in Kind" assistance to your daughter. You do NOT have to collect it, but you have to till SSA that you are charging her that much money.

One last comment. Make sure your daughter does NOT earn more then $1000 a month. At about $1100 a month, Social Security starts to say that is Substantial Gainful Activity (SGA) and as such she is NOT disabled and thus NOT entitled to SSI. This is a DIFFERENT Test then the above reduction of her SSI based on her income. The reduction of SSI, is Congress's plan to minimize spending on SSI but making sure a person only gets the bare minimum income to take care of themselves. The SGA test goes to the issue is she disabled? If she can do SGA,
Substantial Gainful Activity, then she is NOT disabled and is NOT eligible for SSI.

One last comment, many people confuse SSI (Supplemental Security Income) with Social Security Disability. Both use the same test for disability (if you are disabled for SSI, you are disabled for Social Security Disability and this includes the SGA test) BUT Social Security Disability is NOT reduced by any other income your daughter gets, no matter how much income she gets and no matter what is the source of that income. i.e. my comments about the reduction of her SSI do to her other income does NOT apply to cases of someone on Social Security Disability but does apply to someone in SSI. People get SSI and Social Security Disability mixed up all the time, but they are different programs, through both are run by the Social Security Administration.

[mopinko]

11. well, they went and fired her.

wtf f.
she brought in all the necessary paperwork. doc says she is almost under control, is showing progress w her meds, takes them as directed.
she said she is absolutely able to work the job, as she has shown in the last 6 months. she is their top seller. they were about to toss her a raise. and maybe a job at a new store they are opening closer to home.

she was given a few simple accommodations, like not switching her shifts around and otherwise messing w her sleep. nothing unreasonable.

the owner apparently tried to contact her doctor without consent.

she is lawyering up, but also looking hard at a job.
there are a couple good opportunities a lot closer to home.
there is a new trader joes, and there is a french bakery where she could polish her french chops.

as to other questions, she is on ssi, not enough years for ssdi.
she does pay rent. she gets a small discount, but that's it. still within market norms.

she is 21.

this sucks.

on the plus side, tho. she wants to get a drawing certificate from the art institute, and we are taking her first class together. i already have a graphic design cert, but i had a half a mind to get another one. drawing in an almost completely different set of classes.
we werent talking for a while, so this is the awesome.