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FMLA and accommodation
Feb 5, 2001

I recently wrote you about whether missing more than the standard 12 days per year my new employer allows would fall under reasonable accommodation. I have read all of your previous responses regarding FMLA and "reasonable accommodation" but none quite answer my question. My problem is that I am a new employee and I understand that FMLA does not take effect until after the first year of employment. If I miss too much time due to HIV medication related fatigue am I protected by the ADA during my first year of employment while on probation? Also, my employer lumps all vacation hours and sick hours in one basket. If I miss time due to my HIV condition it will suck up all of my vacation hours. They say any hours missed must come out of my vacation. Can I address this with my employer? If I am not allowed to take vacation because of having to use all of my hours for my disability, is not this a form of discrimination? Thank you

Response from Ms. Gabriel

You are right that the FMLA requires an employee to have one year of service before being eligible to take the leave. Your question about reasonable accommodation falls under the Americans with Disabilities Act.

Here's the way a request for reasonable accommodation can work successfully: talk with your healthcare provider about your job functions and any limitations your current health situation poses. For instance, does your fatigue require that you miss the entire work day or would taking a nap during the day help? Have your doctor write a note for your employer (human resources director) stating that your are under his/her care for a disability (if you haven't disclosed your HIV status make sure the note doesn't mention it). The note should list any functional limitations (to your job) that your health situation poses.

3. Take the note to your human resources director and discuss potential reasonable accommodation (ideally, your healthcare provider should be a part of this conversation). Have this conversation soon.

Please understand that in order to be covered by the ADA you must be able to complete the essential functions of your job. If your health situation requires you to be absent from work so frequently that you are not able to complete the job you were hired to do, you would not be covered. Remember -- your ability to do your job is what your employer is required to evaluate.

Please take care of yourself and good luck!

Lynne Gabriel

Pre-employment drug testing and HIV implications

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