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Employer requiring specific diagnosis for reasonable accommodations!
Jun 8, 2008

I'm a salaried exempt employee with HIV/AIDS that works for a company with approx. 200 employees contracted by MediCare who access patient information via a Web-based program and then make medical assessment/case management calls to recipients nationwide.

Recently, due to my disability of HIV/AIDS and the medications I'm required to take, I had to use all of my accrued sick time. My employer gave me a verbal warning for this. They did not know of my disability at that point, so I do not take issue with the warning. I then gave the HR Director, my Program Director and my immediate supervisor a notice from my doctor informing them that I have a disability that is covered under the Americans with Disabilities Act and his request that they work with me to develop accommodations in the form of a flexible schedule in reporting to work. The letter included specific side-effects of my disability and medications (i.e., vomiting, diarrhea, confusion, anxiety/depression, lethargy) that occur intermittently during morning hours (Sustiva) and informed the employer that these intermittent effects would, when they occur, prevent me from driving to work at my scheduled arrival time. They did not initially respond to that letter given to them toward the end of April.

On May 6th, while already at work (start at 8:30), I had uncontrolled diarrhea. I cleaned myself as well as I could, but still felt self-conscious around other co-workers. My supervisor was not available in person, so I told her via e-mail at 11:45 AM that I was leaving due to a medical emergency and taking work home with me to prepare for the next day. I also verbalized same to another supervisor (that is my supervisor's best friend) and this was witnessed by another co-worker. They are now requiring me to use 4 hours of accrued sick time toward the four hours I was not in the office that day.

After expressing concern to HR that no one addressed the notice from my doctor in April (including the HR director), and that I didn't feel comfortable sitting in feces-stained clothes for a meeting to end, and that I've still never received a response to my doctor's letter, I received a letter from HR requesting that my doctor "identify the physical or mental impairment by name," and "the nature, severity, and duration" of the impairment and what accommodations he recommends. HR tells me that it is their policy to use sick time for absences of more than 4 hours. When I ask them what will happen if this occurs again and I have no sick time available, they refuse to give me an answer. They also tell me that I cannot stay later to make up the time I come in late, and that it is unreasonable to provide me with a laptop and phone line to work from home (again, only a few hours on very limited days in the year), even though others in my department are given that option, and others in other departments work from home full-time.

My questions: 1) Are they allowed to ask for the specific name of my physical impairment (disability)? 2) If I refuse to disclose that information (they've already been given a letter from my doctor confirming a serious medical condition that's under ADA), can they lawfully refuse to provide reasonable accommodations? 3) Are they allowed to apply sick time toward time away for a disability, especially when, as an exempt employee, I was there for half of the day? 4) Is it a reasonable accommodation to request that, on the days that I'm experiencing side-effects of my disability and cannot drive to work until 11:00 AM - 12:00 PM, I be allowed to work from home to make up the time? 4) If they fire me because I have no sick time to apply toward time I'm not there due a disability, for which they've already been given notice and a request for flexibility on, what recourse will I have.

I do not have FMLA available as I'm there only 9 mos.

Lastly, everything that HAS been discussed so far has been done in a professional manner. I just think that, because I look healthy and perform my job WELL (even with those missed hours), they are having a difficult time understanding why I'm asking for this. I don't want to have to disclose my HIV status to get them to believe me.

Thank you for your time!!!

Response from Ms. Breuer

You are so smart not to cave on this one. No, they don't have a reasonable, valid reason to demand the diagnosis unless they plan on practicing medicine on the workplace floor! This is a wild guess, but I'm guessing none of them is an MD, a PA...you see my point.

They've demonstrated to you that they need some help understanding the ADA. Apparently they've not used it successfully before; your case should be easy. For this reason, I encourage you to get some outside help.

To expedite the help you need, I suggest that you draft a letter to your employer outlining what you and your doctor have done so far (use what you just sent to us) and take it in paper form and electronically (on a memory stick or CD) to your nearest office of the EEOC. See a lawyer, not a receptionist, and ask the lawyer to edit and send it on EEOC letterhead at their earliest opportunity. Your employer has made it clear that no one on board in HR knows how to do this.

Please write again if this doesn't work. If you can't see anyone at EEOC for several weeks because of backed up appointments, see if there's legal help at your local AIDS service organization. If there is, that letter should go without reference to or a return address of the organization. It should refer only to the attorney who writes it. The letter should be informative, not threatening. That's not an attorney's favorite approach, but this is a job you want to keep.

Your message demonstrates to me that you have everything it takes to do this successfully. More power to you!



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