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PFDR

Fired... Related to Gulf War Research Study time commitment?

Question

So, the TL:DR is I am looking for a referral to an Employment Lawyer who specialized in helping Veterans with USERRA, VOW, ADA, FMLA & potential non compliance with  - Executive Order 11246, Section 503 of the Rehabilitation Act of 1973.

To sum up what has just occurred, I've been employed with a large multi-national technology company for 2 1/2 years, who also does a lot of business with the Federal Government. Things were going well, until I recently started to socialized that I am a 90% rated Gulf War vet and I've just enrolled in a study where I'll need to take off time, more so than my normal once a year vacation.

I've just started the study and have started to put time off requests in stating that this time off is for this study.

Monday (10-29-18) I had our normal standing 1-on-1 with Manager, great call no issues our usual pleasant personal & work related topics. But got an email after hours on Tuesday night saying we have to have a one off first thing in the morning call to discuss performance issues. 

Wednesday (10-31-18) rolls around and I've been informed that due to performance issues I'm being placed in P.I.P (Performance Plan) I should start looking for a new job and I have 60 days and my employment will be terminated.  

Rather out of the blue, and I've compiled quite a bit of data to indicate so.

I've been researching online like crazy this past day but would appreciate any brother or sisters from here who can point me in the direction of a Lawyer/Firm that they've had/heard good experiences with related to my above scenario. 

Thanking you in advance for reading my post and your response.

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Yes, Berta.  I got turned down for a job..I was a disabled Vet with a college degree..they hired a non Vet without a degree.  I filed, then dropped an eeoc complaint.  I just did not want to be working there if they dont want me there.  

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3 hours ago, broncovet said:

My "intuitive" answer is that your boss needs to make "reasonable accomodations" to your disability.  The difference is "reasonable accomodations" defination...yours may be different than your employer.  

I doubt your employer would be forced to give you time off to retrain for a new occupation.  Yes, your employer may do so willingly, but I doubt the courts will force him to do this.  That may not meet the defination of "reasonable accomodations".  In other words, your boss may need you during those periods of absence.  You would have a better case if you offered to come in on Saturdays or evenings to make up the time lost attending classes.  It makes it sound like you are asking your employer to pay you while you are studying for another job.  

 

Thank you for the reply and insight @broncovet . I see your point on a 're-training' type of scenario but with mine it is medical.

Also, I do see your point on reasonable accommodations and employment at will, but falling into the 'protected Veterean' status I understand it to be 'cause' being the largest item that may supersede the broad definition of 'right to work'.  Just looking to explore options and see if others have had good experiences that they can share with a lawyer/firm.

 

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4 hours ago, Berta said:

Section 503 of the Rehabilitation Act of 1973 is useless.

You can file an ADA complaint yourself. My husband won the first ADA complaint filed here in NY.

I did all the legal work for him.He had filed 17 discrimination complaints under 503 Act with DOL-I prepared every complaint with evidence but DOL  did nothing.I filed the ADA complaint the first day the ADA became law-here in NY- 1990 ? 

The ADA found a federal contractor had discriminated against him on a job re -call. The company had to pay him.

It took mere months for the ADA to render their decision.

I had so much evidence by then, due to the DOL complaints, I had to narrow it down for the ADA, in one single packet of evidence with the formal complaint.The ADA lawyer was surprised that DOL did not find the company in compliance with 503 Rehab Act.By then I knew 503 and DOL was just a waste of time. I found in 1990 that since the 503 regs came out (1973)only one single disabled Vietnam vet had succeeded under 503...in the whole USA.

 

However your request to participate in a Gulf War Study might not be a " reasonable accommodation" as defined in ADA regulations, it might be an "undue hardship" per your employer.

Did the VA ask you to be in this study?

Can you tell us what type of study this is, that would require a GWvet to take time off work for?

Do you have a link to this study?

There is a lot of info on Google as to the ADA.

Also I am sure you can find a lawyer familar with ADA on the internet.

You also need documented proof that you are fully qualified to perform your job.

"Wednesday (10-31-18) rolls around and I've been informed that due to performance issues I'm being placed in P.I.P (Performance Plan) I should start looking for a new job and I have 60 days and my employment will be terminated. "

My husband never asked this employer for an acommodation because his performance appraisals were all good, after they finally hired him. 

Basics on ADA-( if your company falls under the ADA)

You could probably file your complaint on line at one of the ADA sites.

But it must comply with ADA criteria and you must have documentation of your issue.

ADA criteria is here:

"A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. Reasonable accommodation may include, but is not limited to:

  • Making existing facilities used by employees readily accessible to and usable by persons with disabilities.
  • Job restructuring, modifying work schedules, reassignment to a vacant position;
  • Acquiring or modifying equipment or devices, adjusting or modifying examinations, training materials, or policies, and providing qualified readers or interpreters.

An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee. Not all people with disabilities (or even all people with the same disability) will require the same accommodation. For example:

  • A deaf applicant may need a sign language interpreter during the job interview.
  • An employee with diabetes may need regularly scheduled breaks during the workday to eat properly and monitor blood sugar and insulin levels.
  • A blind employee may need someone to read information posted on a bulletin board.
  • An employee with cancer may need leave to have radiation or chemotherapy treatments.

An employer does not have to provide a reasonable accommodation if it imposes an "undue hardship." Undue hardship is defined as an action requiring significant difficulty or expense when considered in light of factors such as an employer's size, financial resources, and the nature and structure of its operation.

An employer is not required to lower quality or production standards to make an accommodation; nor is an employer obligated to provide personal use items such as glasses or hearing aids."

https://www.eeoc.gov/eeoc/publications/fs-ada.cfm

 

 

 

 

 

 

Hi @Berta, WOW, that is a very detailed reply. Thank you for taking the time in providing your insight.

Here is some of my feedback to your questions below:

However your request to participate in a Gulf War Study might not be a " reasonable accommodation" as defined in ADA regulations, it might be an "undue hardship" per your employer.- Thank you for drawing out some additional clarification I need to understand.

Did the VA ask you to be in this study? - YES, The VA reached out to me requesting to be part of the study

Can you tell us what type of study this is, that would require a GWvet to take time off work for? - The Study is for Medical Testing for new treatment options for GWV's

Do you have a link to this study? - The request was conducted via a letter (mailed ol' school, postal.)

There is a lot of info on Google as to the ADA. - I'm researching and thank you for the link, also reaching out here to see if other folks have had similar experiences they can share regarding a lawyer/firm for my scenario 

Also I am sure you can find a lawyer familar with ADA on the internet. - True. But I like to see if others can recommend to help narrow down due dilligence and time to research the good from not so good.

You also need documented proof that you are fully qualified to perform your job. - You've stumped me on this one. Not sure of this statement.

"Wednesday (10-31-18) rolls around and I've been informed that due to performance issues I'm being placed in P.I.P (Performance Plan) I should start looking for a new job and I have 60 days and my employment will be terminated. "

My husband never asked this employer for an accommodation because his performance appraisals were all good, after they finally hired him.  I also never asked for accommodation, didn't feel I needed to since my performance was inline with goals and I felt all was going well, until I submitted my first vacation day request to start this study.

Basics on ADA-( if your company falls under the ADA) - I believe that a multi-national (450K employees) falls under the ADA for it's U.S. operations. But, it is an assumption of mine, I'll need to validate.

You could probably file your complaint on line at one of the ADA sites. - Thank you again,  I'll look into it. I'd also like to have a lawyer/firm in my corner who "lives and breaths" this as a profession.

 

 

 

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You may also be covered under the FMLA https://www.dol.gov/whd/fmla/

It provided job protection, without pay, for up to 12 cumulative weeks per year for family members with serious illnesses or your own serious illness. The definition of serious illness is a bit murky but I would assume your illness(s) may fall under this if it/they are related to GWI.  Also, since it is cumulative, it can be used intermittently.

As with other replies, consult with the DOL and an attorney.

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