I had an Fmla leave prior, but I used up the 12 weeks allowed, which led to me getting an accommodation claim done. My doctor had put on the paperwork to allow 7-9 days a month, but my job only allowed 4 absences a month. If I call in when I’m not feeling well and I’m near the point limit, will this protect me from firing?
ADA accomodations are not like FMLA. They can revoke your accomodation if they determine it's a hardship to them. They can ding you performance metrics. Accomodations don't change performance expectations.
They can't fire you because you have a disability. They can fire you if your disability interferes with you doing your job to expectations.
If my Job is walmart, would this create any hardship if multiple people are scheduled during the day in the department I’m in?
If they say it does.
Darn it
Unfortunately if they need X people and end up with X-1, they will potentially struggle. As someone who knows people who do the scheduling and make up rotas etc, it comes down to organisation and in a big company like Walmart they'd have that down to an exact science.
One of the issues is that accommodating people should not also put burdens on the shoulders of fellow employees; it would be unreasonable for your colleagues to have to take on extra work for an accommodation you have. The accommodation should be that you are enabled to do your job to the same standard and volume that others are expected to do, not that the work has to be divvied up between other employees and for you to do less than your schedule dictates.
Accommodations do not include someone doing your job for you. They are put in place to allow you to do your own job.
Burdening other employees with your work isn't reasonable. Now if there are other staff they can call in to replace you, sure, that's probably fine. But if they're constantly ending up short of staff for your department, that means your coworkers are covering your job for you. But usually your employer will call you in to renegotiate your accomodation rather than simply fire you.
May I ask why you haven't considered going part time? Assuming you work a 5 day week, there are 20 working days in most months. If you need 7 to 9 days off, you're asking for nearly a 50% reduction in hours.
TX is at will. They can fire you for almost anything. If you go over the 4 days once you’ll probably get fired. They may already be looking for a reason to. Don’t give them one.
Regular attendance and adherence to the posted schedule is an Essential Job Function. In general, a regular schedule included in a standard 40-hour workweek is 20 scheduled days per month. The Employer has clearly stated that a chronic and ongoing absences rate of 35% - 45% every month is an undue business hardship and is limiting the accommodation to 4 absences a month which is still an ongoing chronic absences rate of 20%. In essence, and absent a Collective Bargaining Agreement absence policy, anything over 4 absences per month will be considered unprotected leave and subject to discipline.
Generally, if they grant an ADA request (they can work with you to find solution, doesn't have to be yours) there's some nuance to what is acceptable beyond the doctors recommendation. So if doctor recommended 4 days and you were out 5, an employer will probably okay that. It becomes unreasonable if it jumps significantly from the doctors notes.
In this case, the employer is granting 4 days and you're expected to be out 7 to 9. On the high end that's almost 40% of the working days in an average month. Time off like that will be hard to grant for any employer and you might want to consider other ADA options you can come to the table with if denied. Work from home, go part time, work a different shift, etc.
I have to push back on this - if the employer has approved 4 callouts per month, that's likely to be a hard limit. They could absolutely choose to apply points or move to term at 5 callouts that month
Unfortunately there are court cases in both directions.
-EEOC vs UPS: a hard cap on leave led to a lawsuit and ended up with UPS settling after 10 years
-EEOC vs Austal: work attendance was deemed more important in favor of employer
So, it depends on an employers risk tolerance and showing good faith efforts being made may or may not be the right decision
For the EEOC vs UPS, is that after using up all FMLA protection and using ADA accommodation towards additional time off?
It doesn’t sound like this accommodation has been approved yet. I doubt it will.
It was. I was told by Sedgwick that it has.
Is this related to a work related injury? Why is Sedgwick involved?
Because Sedgwick handles all the leaves
I see, aside from leave, are their other accommodations that could help?
Askjan.org - The Job Accommodation Network is a great resource
I know of someone that won against Walmart for not accommodating medical appointments in the late 2000s.
Part of the criteria is that the employer has to demonstrate undue hardship. Being left short staffed often could be seen as an undue hardship, but you know your role the best.
https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada
Unfortunately, the state you live in makes a big difference when it comes to ADA enforcement and Texas isn’t great.