ADA Transfer at Job

[kzainos]

Hi, I'm new to the forum and need some help from those that may be familiar with the ADA. I've had seizures due to right temporal lobe epilepsy for four years now, and was formally diagnosed May 2010. Before this, I was unaware of any problem. I'm a blackjack dealer and started noticing the episodes a couple weeks after I started as a dealer (about 4 years ago).

My seizures are not completely controlled by medication (right now Keppra, in the past Lamictal and Depakote). I mostly have them at work but when I was taking Lamictal they were so bad I had them outside of work pretty frequently. Now I rarely have them outside of work, but I've had them at night, bit my tongue while sleeping, etc.

My Dr. told me she wants to get my seizures under control because my first EEG was normal (which I guess is not unusual, even with epilepsy), my second EEG caught the seizure activity, and my third EEG showed the left side of my brain "copying" the seizure activity of the right side of my brain. So I'm getting worse. I asked her if I should try to change my job since I never noticed seizures before working in a casino environment. She said I'm not photosensitive, but other stimuli in the casino could be contributing to the seizures.

I put in for an ADA transfer at work last month (this is a large hotel casino and there are plenty of positions off the casino floor). I gave HR a note from my Dr. and no response. My immediate boss called them a week later and I got a call from them the next day. They scheduled me for an appt. with them a week after that to discuss my situation, and at the appt. informed me they needed another, more detailed note from my Dr. They gave me a letter to give to the Dr. with specific questions. I brought them the additional note a week after their request (I go to the VA Hospital and it takes awhile to things there). Another week goes by and today I call and leave a message asking about the status of my transfer request. I get a call back telling me I need to come by and get another letter from them to give to my Dr. - they have more questions.

My Dr. stated in her note that she recommended the change in work environment. She answered their questions about any work restrictions, when I need breaks, etc. I guess I'll find out tomorrow what else they could possibly need, but my question is, just how long is it reasonable for me to wait for a reasonable accommodation? They did offer me unpaid leave when I met with them, but this is something I cannot afford to take. So now I wait and wonder - is my company is doing right by me?

 

[Minkels]

I'm sorry to hear that your company is dragging their feet in letting you know their response. There are no absolute guidelines as far as how long it should take for the company to get back to you unfortunately--I work in HR and the general guideline is to of course try and grant any reasonable request as soon as we have all the information available, but there isn't any given time limit. It sounds to me that the ADA accommodation of a job "off the casino floor" is pretty straightforward, and since it is a large casino, there probably are plenty of other positions that you could be placed in where your accommodations could be met.

Does your company offer short-term disability benefits? If you are eligible for them (generally absences from work over 7 days) you should apply for short term disability for the time you were off/going to be off. It's generally around 60% of your salary but is better than nothing. Something else you can do is ask the employer if there is anything that you can do to help them get the information they need to find you a position you can transfer into in a timely fashion. I also would ask if there are any positions/jobs that you can do (off the casino floor) while you awaiting your transfer that are temporarily vacant.

 

[Brent]

It doesn't sound, from the information you gave, that your employer is being unreasonable. It sounds like they are making an earnest effort to thoroughly understand and document what they need to do to accommodate your request. They do have the right to prevent you from working at all until they can make the accommodation if they can reasonably deem that you cannot perform the work for which they hired you.

That is, if there is nothing they can do to mitigate your disability so that you can perform the job, they don't actually have to keep you on. They are only obligated to make reasonable accommodations so that you can perform your job. If that can't happen, they are not required to find you another job.

Now, if they are a large enough organization that they can reassign you to another job for which you are qualified, and they choose to do so, that's great. We should all be so fortunate. Just remember that they are not required to. Moreover, they are not required to give you preferential placement for any other job openings they may have. That is, if they have a desk job opening (for example), they can give that job to another person that is more qualified, even if you are qualified yourself. They just can't deny the position to an otherwise qualified candidate on the basis of a disability.

So, I would be patient with them. If you cannot safely perform the job, then you walk a fine line. On one hand, you could force the issue as a point of safety because the casino doesn't want to be sued for having you work in a position where they knew about the risk of seizure and did nothing about it. However, their reaction to that fear could be to just let you go or put you on forced leave while they sorted it out. They would be within their rights to do that if not reasonable accommodation could be made to keep you in your current position.

 

[kzainos]

RE: ADA transfer

Hi Minkels, thanks for the reply - very helpful! After giving them the third note from my Dr. on Oct. 21st, I found out from my husband over the weekend that the new manager at the spa in the casino I work for would be calling me for an interview. LOL, yes, my husband. We work for the same casino and one of the people from HR saw him and informed him of what was going on. He told me the new spa manager would be in on Tues. 25th and I would hear from her afterward - I did get a call from her on the evening of the 26th, but was asleep (I work the graveyard shift) so I called her back two days in a row with no response. I went to the spa this morning and she's having me bring my resume in on Tuesday to interview for the position.

There would have been temporary disability if I had been smart enough to sign up for it when I signed up for benefits! Something I'll definitely have to look into during open enrollment. Anyway, thanks for the reassurance. That's all I really needed - casinos aren't really known for their loyalty to their employees, so I wanted to be sure everything is kosher.

Brent, thank you also for your reply, but they are required to reassign me to another position if I am qualified. I don't have to be the most qualified, just qualified. I have been very reasonable with my employer. They don't have to offer me a job equal to the one I currently have if one isn't available, and they haven't. They offered me one with much lower pay and I told them I'd take it. Am I qualified? You bet I am - I'm college educated, hard working, never late, never absent, I get along with customers, bosses and co-workers, and I've worked for them for two years. The job they offered me was in the Spa, stocking towels, toiletries and answering phones.

In my current position, safety isn't the issue, but my ability to perform the job is, and there is no accommodation they can make for the position. So you are right, it is good that they are allowing me to stay for the time being. But when I requested the transfer through HR, they suggested to me that maybe I should think about going on disability (SSDI) instead of working. I told them no, I can work, I just can't perform my current job. I definitely think it's a possibility they are dragging their feet, hoping I'll make a mistake large enough to fire me so they can be rid of what they consider a liability. I could also be completely wrong in that thought. All I want is to work, get the benefits I have earned at my job (medical, dental, vision), and get control of my epilepsy so I can move on from there.

Here are some quotes from the EEOC policy on job reassignment as a reasonable accommodation: "The ADA specifically lists 'reassignment to a vacant position' as a form of reasonable accommodation. This type of reasonable accommodation must be provided to an employee who, because of a disability, can no longer perform the essential functions of his/her current position, with or without reasonable accommodation, unless the employer can show that it would be an undue hardship. An employee must be "qualified..." "The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment." "Does reassignment mean that the employee is permitted to compete for a vacant position? No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended."

You can get this from the EEOC website - sorry, the forum won't let me post the link because I haven't been around long enough.

 

[Brent]

they are required to reassign me to another position if I am qualified. I don't have to be the most qualified, just qualified. I have been very reasonable with my employer.

Yes, you are right. I got two rules confused:

1. When considering reassignment, the employer does not have to bump another employee or violate seniority rules to give the position to the disabled employee.
2. When hiring a new employee, the ADA does not require that an employer hire an applicant with a disability over other applicants because the person has a disability. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability because he is disabled or because a reasonable accommodation is required to make it possible for this person to perform essential job functions.

I was conflating these rules to apply the second rule to extend the first. But, oddly it does not. I say "oddly" because an employer has the right to fill a position with the most qualified applicant (regardless of disability) ... unless they already hired that person for another position.