termintion of person covered under ADA

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termintion of person covered under ADA

I have been employed at my job for 4 years and have had FMLA for COPD for 2 years. I have used all my FMLA allotted for this calendar year but still have 45 hours of vacation and comp time as well as short long term disability should I require it. My physician was asked to complete and return forms about further accommodations that may reduce the amount of absences which she did. Today I was called to HR and given a document titled

Asked on August 27, 2019 under Employment Labor Law, Wisconsin

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

Missing work after you have used up all paid time off and FMLA leave to which you are entitled is not a reasonable accommodation: a "reasonable accommodation" is a change that lets you do your job, not miss work. So if and when you miss work without being able to cover the absence with FMLA leave or PTO, you could then be terminated. Employers are not required to retain employees who cannot or will not show up to work when required by the job, once they no longer have the protection of FMLA leave or use of PTO they accrued.
However, you have not done that yet: you write that you have 45 hours available to you. Until and only if you do exceed that time and miss work without using PTO and FMLA, they cannot legally terminate you: they can't fire you "in advance" for what they fear may (but has not yet) happen due to your condition, since pre-emptively terminating employees over concerns about their disability or condition is to discriminate against them on the basis of their disability. So unless you want to take the offered job change, show up to work; if they do terminate you on the 3rd without you at that point having had any unexcused absences, contact the federal EEOC or state equal/civil rights agency about filing a complaint. 
Do bear in mind that if you do expect to miss more time than you have PTO and FMLA, you can expect to be lawfully terminated at some point, so if there is some career or job change that will help you avoid that, it is worth considering.


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