Grievance Issue - Saga Continues!

njjel · July 2004

The ee who filed the grievance against her supervisor for writing her up for her failure to take the front desk when asked, has now come to me to file an ADA complaint (sigh). She stated that since everyone here knows that she is diabetic, she should have been granted the ADA accommodation she requested when she asked her supervisor to give her time to get herself together.

OK so my question is - even though we all do know that she has health issues stemming from her diabetic condition I say that ADA does not require an employer to accommodate an employee who can not fulfill the duties of the job (which according to her statement to the supervisor she was unable to do at that time). AND even more specifically, she did not state to the supervisor that due to her "diabetic" condition she was unable to take the front. She said she "had had a bad night and needed time to get herself together."

I don't think we have a problem, but do we? Your thoughts again please.

Don D · July 2004

Have you considered telling her that the appropriate place to file an ADA grievance/charge is down the street at the EEOC office?

On the other hand, if she wants to discuss the granting of reasonable accommodation, moving forward, yours is the proper desk at which to stop.

njjel · July 2004

Thanks Don - What I was trying to get at however is that just because she said she had had a bad night wasn't enough to clue the supervisor in that she should make an accommodation for her as (I believe) an employee must be able to fulfill the job duties of their position WITH an accommodation and if that accommodation means time off from doing that job that then the employer doesn't have to grant it. Is that not correct?

deltadays · July 2004

Time off, as in a leave of absence, may be a form of accommodation. I don't see this spur of the moment, a few minutes off, as meeting that criteria. Most accommodations that I dealt with were discussed and approved prior and usually were more along the lines of needing an extra rest break or working less hours or something more concrete. I don't see how her diabetes qualifies her to be accommodated for needing a few minutes to get herself together whenever the need arises especially as I recall she had just come to work.

Pork · July 2004

NJJEL: Just because one is a diabetic (like myself), one is not disabled. Diabeties can be a disability requiring accomodations for which we are required to disclose what "one would look like". Giving me a break every two hours to take a blood sugar sample while on the job could be a need and an accomodation. Or allowing me to eat an orange, while on the line or going to the bath room more often due to the tremendous amounts of liquid I must consum might be an accomodation that the company would have to deal with; however, if I just say I'm a diabetic, therefore, give me what I deserve or if you treat me as a diabetic as something different from other ees, then you have "ADA" to deal with an issue or issues surrounding diabeties. Otherwise, I am normal and I only want you to watch me more closely, to insure I'm of my right mind and aware of my surroundings and happenings.

Sister diabetic needs to go further for you to have a concern with ADA, (based on what you have written here).

"Dandy PORK" is so good!

Hatchetman · July 2004

Diabetes has been held to be a disability under ADA. But whether it rises to a disaiblity for this emplyee has to be determined thourgh the interactive process.

If management knew she wa a disabetic, the issue of whether it would have been a reaosnable accommodation to to provide what she was requesting (I don't recall exactly what it was), should have been evaluated through the interactive process.

While your supervisor may have been rigbt to order here to go to the front desk and disciplne her if she didn't, you still may be in trouble with EEOC if the supervisor didn't at least explore the issue of whether the diabetes was the cause for her request.

The issue of whether the employee could or could not perform the essential duties of the job at that point and whether she was entitled to reasonable accommodation is like the proverbial "chicken and the egg." But EEOC takes a hard look at what the employer does in response to an employee's request when it knows the emplyee has a medical condition as much as it looks at the outcome of any decision or non-decision regarding the request.

Don D · July 2004

Horsefeathers! There WAS NO REQUEST. The woman said, "I can't deal with you right now, I had a rough night." That is no bugle call to engage in the 'interractive process' and it's ludicrous to think a supervisor should take that comment, retreat to his office, and go through a mental analysis of what she might have meant and why.

Just my humble (as always) opinion.

smaces_twin · July 2004

I read Hatchet's post differentlly and I agree with it. He said the supervisor acted appropriately at the time. Now that she played the ADA card after the fact it is important to begin the interactive process now to determine if an accomodation is needed. If it's not needed fine, but at least they made a true effort to review it. That is what will help should an EEOC investigation follow. Based on her behavior so far, I would not think it is unlikely for her to file a complaint (baseless or not).

morrisg · July 2004

I think the issue here is "reasonable accommodation." as long as your employee satisfies the skill, experience, education, and other job-related requirements of the position, and an perform the primary job tasks of the new position, with or without reasonable accommodation then keeping her off the job for a period is a required reasonable accommodation.

If you have a union invloved here, that would go a long way towards your efforts to show good faith.

Also, don't forget FMLA. If this person has a medical need to be off, she may have an FMLA claim.

njjel · July 2004

[font size="1" color="#FF0000"]LAST EDITED ON 07-13-04 AT 09:39AM (CST)[/font][br][br]Just to refresh everyone's memory of this particular instance, the ee in question arrived 25 minutes late, was to take the front desk (not her usual job but nonetheless a duty that she was aware of for that particular day). Due to her lateness another ee had taken the front desk. When the super observed the other ee at the desk instead of the one in question she went to the ee and advised her to take the desk. this is when it all began. yes management is aware the ee is a diabetic and has made accommodations by allowing her to take a fixed lunch period and keep her emergency insulin in the refrigerator, etc. However, she did not as Don stated, make any reference to an accommodation that morning due to her diabetic condition. She stated she'd had a bad night and needed time to collect herself. At this point do you all feel we should bring her in and sit her down and ask her what accommodation she requires? She is stating that the supervisor refused her request for an accommodation. She stated she hadn't felt well in the a.m. but came to work b/c she remembered she had promised to take the front desk. However, I'm thinking that one is required to come to work prepared to work when they get here ADA or no ADA. Am I wrong?

PS and yes this is a union environment.

ritaanz · July 2004

Holy Toledo guys. Give this gal enough time and she will come up with 10 more reasons why she was such a pain in the behind. An accommodation? Sounds like she is blowing smoke, you know where.

njjel · July 2004

Hatchetman - So you are saying that whenever this ee refuses to do something and asks for time before she does it management must try to figure out if this is related to her diabetic condition?

smaces_twin · July 2004

You said she filed a grievance that states she was unable to begin work becuase of her diabetes. I believe you have to make a good faith effort to determine if that was true. I think she's full of it, and you think she's full of it. But that does not mean you don't have to participate in the interactive process.

Crout · July 2004

Tell her that accomodations do not come after the fact and move on.

LindaS · July 2004

I agree with Don, Rita and the others who feel that this is a bunch of bull.

This employee probably knew that she crossed the line with her comments toward her supervisor and is now looking at the proverbial "golden umbrella" of the ADA to help her cause. Coming to you after the incident occurred and telling you, "Oh by the way, I should have been granted an accomodation that day" is not the way the ADA process works. Now if she came to you prior to, or during, the interactive process, to determine what accomodations could be made and one of them was some type of flexible schedule, that would be different. What you have here is an employee who was late to work, was insubordinate to her supervisor and was made to answer for it.

As an employee she had a responsibility to inform her supervisor if the reason she was late and not feeling well was due to her diabetic condition but she didn't so it is not up to the supervisor to disect the conversation to determine WHAT the employee MEANS when she speaks.

njjel · July 2004

Since this a.m. I have met with the ee and discussed w/her that since we have nothing formal in the file to please advise me what limitations she might have and I requested she obtain medical certification from her physician as to what her limitations are and for what length of time. To that request she stated she would probably do that but she was waiting on a call back from the EEOC. I further told her to do whatever she had to do but that we need to get her request for accommodation for the file.

Grievance Issue - Saga Continues!

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