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Can my employer do this?
Aug 27, 1997

In Feb of 92 I was hired by a major airline with them having full knowledge of my HIV status. In feb of 95 I had to leave work on MLA due to complications of AIDS related KS. In January of this Year my Doctor said I could return to work on a limited basis (working reduced hours). I notified the company of this, and asked them to allow me to return to work asap. They told me I could not return to work until I had been retrained. 2 months later I learned from a co-worker that the Company had Advertised, hired, trained and employeed new employees into positions that I was suppose to return to. The company never asked me to be a part of the training. As a result of this I notified EEOC of what was happening and the agreed that the company was possiably in violation of ADA and agreed to file charges against them. This month the company has contacted me several times (after months of offical silence and unoffical run around) They have stated I must return to work as a full time employee working 40 a week) or take a part time position (which would put me at the very bottom of senority with horriable hours and days off putting me on an on-call-status allowing them to increase my work week to 40 hrs a week anytime they choose during peek periods.) This seemed very unfair to me! The company has a position where employees work only 4 hours a week, and increasing up to 40 hrs a week during promotional periods. As a compromise (even though this would put me also at the bottom of seniority as well) I asked for one of these positions rather than having to be there every day 4 to 5 hours a day in a part time positon, I thought this would be something I could handel. The company refuses to grant me one of thoes positions, stating even though others are currently working them, it is not an option for ME. I have contaced EEOC in regards to all of these matters that have transpired since the orginal filling of the charges, but they told me nothing can be done until a investigator is assigned to the case which could take over a year. They said I had the right to ask for a right to sue to be issued, but if that is granted they would no longer be involved. Do I have any legal recourse against this company. Do I have any legal gound to stand on should I ask for a right to Sue? If I did since this is a major airline with a huge legal department would they just run me into the ground? After all this company has put me through, I must admit I am now very afraid to even return to work there. I am afriad of retalliation from them, and how they would treat me. Can you please offer any advise or possiable refferals who could help me? Thank you (mpelton@erols.com )

Response from Ms. Franzoi

In order to answer this question, I would need to have more information on the company's medical leave policy. In your e-mail, you state that you went out on a medical leave in February 1995 and received a release to return to work with some limitations in January 1997. This is almost a two year period. Most companies do not keep jobs open for a period of time this long. In fact, it would be more typical for them to terminate an employee who has been out on leave after a stated period of time (of course, in compliance with FMLA). I suggest that you review your company policies in this regard.

With respect to an ADA claim, it would probably be helpful to have an attorney look at the requirements of the job you were applying for to see if you met those requirements with whatever limitations your doctor indicated.

I think the best avenue for you is to seek some legal advice. If there is a free legal aid association in your area, contact them. If you are in the Los Angeles area, APLA might be able to assist you.

-- Lynn Franzoi



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