Chronic Tardiness ({Part 2)

[theretoo]

To OP of this thread, I am there with you. I have chronic depression and I am very difficult to wake up and I suffer insomnia. Is it a disability for me, yes. Does ADA recognize sleep issues as disabilities? Yes. File a complaint with your local office of EEOC and find a local Employment Law Atty in your area to discuss your case with.

As a quick note as well, my PCP had diagnosed me with "depression" a couple of years ago after being treated for years for anxiety. I disagreed with PCP, my thoughts and ideas of depression were of someone crying all the time and in the "woes me" mode all the time. That is not me. As the OP mentions, their ADD manifests in a particular way as does my depression. I did not like the "label" of being depressed, and initially "rejected" the diagnosis, thinking "that is not ME". After learning more about the disease and the variations in the ways it can manifest, I finally found acceptance within myself with the diagnosis.

Life is a journey, and I learn something everyday, including about myself. Best Wishes....

 

[cbg]

Does the ADA require an employer to accept chronic tardiness as an accomodation? No.

 

[theretoo]

Does the ADA require an employer to accept chronic tardiness as an accomodation? No.

http://www.docstoc.com/docs/9801922/386-Jury-Instructions

CBG, the issue is does the employer "UNDERSTAND" what a disability is or what it is like to have one? Google EEOC and Depression and you will find many ways to accomodate sleep disorders, depression, etc. including modifying company policies and employee schedules. In the state of CA, it is the EMPLOYER's RESPONSIBILITY to initiate accomodation and the employee DOES NOT HAVE TO ASK FOR IT. I love CA, but the govenator needs a new job.

CBG's response is what I would expect from the "lazy" employer....."I don't have to do THAT!"...Yeah, and I don't have to work for YOU either... That answer does not fly with me or the state of CA....

 

[cyjeff]

http://www.docstoc.com/docs/9801922/386-Jury-Instructions

CBG, the issue is does the employer "UNDERSTAND" what a disability is or what it is like to have one? Google EEOC and Depression and you will find many ways to accomodate sleep disorders, depression, etc. including modifying company policies and employee schedules. In the state of CA, it is the EMPLOYER's RESPONSIBILITY to initiate accomodation and the employee DOES NOT HAVE TO ASK FOR IT. I love CA, but the govenator needs a new job.

CBG's response is what I would expect from the "lazy" employer....."I don't have to do THAT!"...Yeah, and I don't have to work for YOU either... That answer does not fly with me or the state of CA....

Wait a minute.

The original thread is gone...

has this depression been diagnosed? has it been deemed ADA viable?

Not all diseases of the same type are ADA'able.

Only one disease has a blanket validity... and depression isn't it.

Further, an accommodation is not at the discretion of the employee... in other words, the employee cannot just say, "I have a disease that forces me to sleep in .... therefore, I will see you sometime tomorrow."

An accommodation, under the ADA, is in four parts.

1. The accommodation must be effective. In other words, it must provide an opportunity for the disabled person to achieve the same level of performance or enjoy equal benefits or privileges as an average, similarly situated, nondisabled person would.

2. The accommodation does not have to be the best accommodation or the one preferred by the disabled person.

3. The employer does not have to provide an accommodation that is primarily for the disabled individual's personal use (such as a wheelchair or eyeglasses).

4. The ADA sets minimum guidelines for accommodation.


Further, any accommodation that demands the employer to go without proper coverage may be consider putting an "undue hardship" upon the business.

This process is NOT the slam dunk you seem to think it is.

 

[cbg]

I am not questioning that sleep disorders can be covered under the ADA. I do not deny that sleep disorders can and should, when possible, be accomodated.

I am saying that the ADA does not say that the employer has to allow the employer to come in late whenever they feel like it. That is not a reasonable accomodation.

A flexible schedule might be. A changed schedule might be. But not letting the employee wander in whenever they happen to feel like it.

You are putting words in my mouth that I never said. Cut it out.

 

[theretoo]

I am not saying either of the above, either...

Was there a discussion with the employer (interactive process) as to what may be suitable? Say that with an employee's schedule of starting work at 7:00 am, and the enployee's physician has documented the illness as a disability and has requested accomodation for the employee, would it be reasonable to change the employee's schedule to a start time of 9:00 am to allow sufficient time for the employee to be able to make it to work and NOT be tardy due to a rigid "one size fits all" expectation?

One size does not fit all. And in my case, the best way to explain this is to comment that in my case, constantly being hounded about being in my seat, EXACTLY, at a speciefic time, not 30 seconds later, etc. has the opposite effect and creates an unreasonable expectation that has clearly been identified as a "problem". How can the employer help the employee with accomodation so that this "barrier" is removed to allow the employee the same opportunities as a person without THIS disability?

My physician has determined that my illness is a disablity. That is all the employer needs to know. It is then up to the employer to work with the employee to determine what they, as an employer, can do, to accomodate the employee to allow the employee with the disability the same rights and terms and conditions of employee who does NOT have this type of disability. Did the employer offer any other suggestions to accomodate the OP in the original posting, or is it just "You HAVE to do this, or you can't work here." I can tell you, that type of narrow minded-ness is akin to calling an empoyee with this type of disability the N word, repeatedly, and expecting them to adhere to a rigid set of set standards that they CANNOT do (see definition of "disability"...would you expect an amputee to be told they cannot work "here" unless they can get out of their wheel chair and walk a flight of steps to their office?) That is what you are expecting from someone with THIS type of disability. Does that clarify things?

Yes, my physician has determined that my illness is a disability, as seems to be the case with the OP in the originally titled post.

Tolerance and comprehension go a long way in this type of situation.

I cannot tell you how many times, over a period of almost a year, I had to tell my sup, manager, HR, blah, blah, blah, that this was a problem and thier expectations were creating a barrier to me, yet they refused to offer any suggestions, except, OK, we will allow you to be "late" 1 day a week. You have, Wed. of every week to be late.

Apparently this is not getting through to you. I have no control over when I may oversleep and sleep through my alarms. I cannot just tell my body that I am "allowed" to oversleep only on Wednesdays. It doesn't work that way.

My employer told me I have "no options", it is their way or the highway, end of discussion. I understand this situation completely, I live it daily. But helping someone who does not "understand" or want to understand, is extremely difficult when it comes to disabilities like this. What options do I (or the OP in the original post) have to be able to be productive members of society, make a living for themselves and their families when they are repeatedly told by their employers that they cannot work "here" unless they can get out of their wheelchair and walk that flight of stairs everyday? Oh, OK, we will let you use the elevator only on Wednesdays. ???????????????

Ooh, THAT helps! ?????????????????????????????????

My former employer has determiend for me that I am "unfit" to be able to support my family because of my disability and their lack of understanding about it. I have no options. It is their way or the highway.

Constructive discharge. Due to my employer's inabilty to understand and lack of willingness to even try to understand, here we are.

In CA, disability laws are governed by the FEHA, not the ADA. Other states may have similar broader protection laws than ADA (now ADAAA) so the ADA is not the final word on disability, depending on your state, county, city laws that offer greater protection than ADAAA.

 

[theretoo]

I am saying that the ADA does not say that the employer has to allow the employer to come in late whenever they feel like it. That is not a reasonable accomodation.

This statement alone shows the lack of comprehension in regards to these types of disabilities. Your statement shows that you think that the employee has a "choice" in the matter in regards to "coming in whenever they want", or that they have some sort of control over their disability, or YOU want the control over their disability. THAT is not the point. You are trying to FORCE a person with a known disability to defy that disability, as in asking the amputee to walk up a flight of stairs every day to get to their office. You want this type of disability to be "black and white" and for the employee to be able to do what you have been told they are not able to do. Flexibility means that if I walk into my office at 7:15 and not 7:00, then you need to get over the fact that I am "late". Deal with it. That is the way it works. Stop trying to force the square peg (mental disabilities) into a round hole, clear cut this or that answer.

There ARE variables. How do you accomodate this? Flexibility, relax a little. You were TOLD I have a disability. You were TOLD that I oversleep. It has been documented by more than 1 physician that has treated me. But you still don't "get it". I have no control over the situation and neither do you, so relax and stop making the huge ordeal over someone being a little "late". There are reasons for it and you cannot control it any more than the employee with the disability can.

 

[cbg]

We can argue about this till the cows come home, but YOU evidently do not get that the ADA puts responsibility on BOTH parties, not on just the employer. The employee is required to put in a little effort, too, and not just decide that the employer has to let them do whatever they want. Not all accomodations work for all jobs. It might not be a big deal for the sales manager to come in late. It can be if it's the receptionist.

The ADA does not require the employer to accept behavior in a disabled employee that they would not allow in a non-disabled employee.

I'm finished with this.

 

[theretoo]

We can argue about this till the cows come home, but YOU evidently do not get that the ADA puts responsibility on BOTH parties, not on just the employer. The employee is required to put in a little effort, too, and not just decide that the employer has to let them do whatever they want. Not all accomodations work for all jobs. It might not be a big deal for the sales manager to come in late. It can be if it's the receptionist.

The ADA does not require the employer to accept behavior in a disabled employee that they would not allow in a non-disabled employee.

I'm finished with this.

CBG, each state may ahve their own disability laws, as CA does. In that case, yes, the EEOC/ADAAA are involved (as they were initially in my case), however, now that we are in litigation, we sue in state court under CA state laws. That being said, in my case, and in any case tried in CA state courts, charges are brought under CA state law. Other states may be different, and EEOC/ADAAA is a federal remedy, but most states offer even greater protection than ADA, so it is very important to know the state laws and not to "assume" that ADAAA would trump state law, just because it is federal. State laws differ, and when going into litigation or making employment disability decisions, state laws will override ADAAA. Know your state laws before relying on ADA(AA) for the final word on disability.

CA State Disability Law clearly overrides ADAAA

http://www.docstoc.com/docs/294707/CA-DFEH-Disability-Under-the-Fair-Employment

 

[cbg]

Do you think I don't know that states can have their own version of the ADA?

Not even California's more liberal laws are going to tell an employer that they have no option but to allow an employee with whatever disorder to be tardy on a regular basis. You're a fool if you think they will.

They certainly might require some accomodation. I never said they wouldn't. Certainly a flexible schedule CAN be such an accomodation with some jobs (by no means all). But even a flexible schedule has limits. It might not be a problem for an employee to come in at 7:15 instead of 7:00 (again, depending on the job) but that doesn't mean that the employee can regularly come in at 9:00 instead of 7:00.

Bottom line, under the ADA EACH position has to be looked at on a case by case basis. What is considered a reasonable accomodation varies with the employer and the position. A declaration that anyone with a sleep disorder MUST be allowed to come in late regularly is painting with FAR too broad a brush. It might work for some jobs with some employers; that does not mean it will work for all. Under ANY state's laws.

 

[theretoo]

If the employer changes the scheduled work hours for the employee to accomodate their disability then the employee is not late, are they?


http://www.jan.wvu.edu/media/Psychiatric.html

 

[cbg]

That's right. They wouldn't be. That has never been the question.

The question is whether or not every employer is REQUIRED, across the board, unilaterally, by law, to change the hours for each and every employee who has any kind of sleep disorder. And the answer is no, they are not. That would not be a reasonable accomodation for all positions.

The JAN provides POSSIBLE accomodations. The fact that a suggestion appears on the JAN does NOT mean that it is required by law in any and all situations.