Being laid off because of absenses due to Migraines
I've worked pt for the past 2 years because of migraines that started at about that time. I have not had medical benefits for about six years. When the migraines started I went to a low cost clinic in my area for treatment because that is all I could afford. At the clinic I was also diagnosed with high blood pressure, and hypothyroidism. Everytime I went I would never see the same dr. twice. Most of the drs. would concentrate on my other ailments and dismiss the migraines. Once the other ailments were under control through medication and losing 60 lbs, I could never get a consistant migraine treatment. I gave up on the clinic for treating my migraines and have suffered in silence, while missing alot of work. Today I called work sick with a migraine, after which I went back to bed. When I got up I saw I had a message from my job. I listened to it, and it was my boss laying me off in a voicemail because of my migraines and absences. I never got one warning, and she was always so understanding in the past. It is very hard for me to be using the computer right now, I am extremely upset and was wondering if this has happened to anyone else, is it legal, and what I can do about this. I am a single mother with two teenagers, and a mortgage. Thank you for your support.
Dear lynajalys -
First of all, I'm really sorry to hear about what's been happening. Dealing with untreated Migraines is bad enough without also having to worry about holding on to your job. Are you in the U.S.A? All states have CHIP insurance for uninsured children; some states also cover the parents of uninsured children. To find out how the program works in your state, you can go to CHIP State Directors for contact information.
I wish I could tell you for sure whether your employer was entitled to lay you off under the circumstances, but I can't. The Americans with Disabilities Act (ADA) prohibits discrimination in employment, including firing, on the basis of disability. Migraine has been recognized by the courts as a disability under the act. What I can't tell you is whether being laid off for absences equals being fired for your disability under the law. There have been cases of people losing on ADA discrimination claims where they hadn't asked their employer for any accommodations (adjustments to the work environment, hours, or other adjustments that would make it possible for you to do the job). What your employer's policies are with regard to absences (and whether they followed them), whether you had an employment contract or are an at-will employee, whether you belonged to a union, what you told your employer about your Migraines and your needs, all of these will be factors in whether they were legally entitled to do what they did.
It would be best to consult an attorney on this. If you call your state bar association you can find someone who specializes in employment law and you may also be able to find someone who will do a low cost consultation. You can also call the ADA Question and Answer line (at the US Department of Justice) to speak to someone and see if they think you have a claim. ADA Information Line 800-514-0301. This article might also be helpful for you: Working with Migraines: Rights under the ADA.
Good luck to you! Please let us know how you make out.
- Megan
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lynajalys
Saturday, November 14, 2009 at 08:39 PM
lynajalys
Saturday, November 14, 2009 at 10:03 PM
Hi Megan,
I also wanted to mention that my job was as a pt College Aide at a State Community College, where my son plans to go next fall. Due to union rules, all pt College Aides could not work more than 17 hours a week, and had to work 4 days a week (mon - thu or tues - fri). As soon as I started, the other pt College Aide in my office had requested a 3 day work week to accomodate her other pt job, she was accomodated, and I was asked to work around her schedule, which I did. When I started the job my migraines were monthly (mentrual), always waking up with one, and usually lasting one day, or less if I was off. Since I only worked three days a week, many times I would get them on my day off, and if I would take an execedrin and go back to sleep, they would usually be gone by the afternoon. Then they progressed to about twice a month, with some lasting on and off for a week. I always told my boss, as well as my co-workers what I was suffering from, and since I usually wake up with a migraine, my boss at one time suggested I switch with the evening College Aide. I agreed that might help a great deal, and I would love to try it. By the time we finished that conversation she had told me she actually would rather have me during the day, because the night Aide was an elderly women, and probably could not handle the demands of working days as well I did. So that idea was squashed in one conversation. I really do need to work, since I am a single parent with a mortgage to pay. I was wondering if I should chance any ill will with my former boss by investigating my rights under the ADA, as well as risk her giving me a not too favorable reference for any future jobs I apply for. Also how would I approach that whole subject with future potential employers? I already have an interview for an on-call clerk typist at my school district, for next Tuesday. Thanks again for all your help.
Sincerely,
Lenore
Megan Oltman
Sunday, November 15, 2009 at 12:06 AM
Well, Lenore only you can decide if it's worth pursuing or not. But remember that just investigating your rights will not get you in any trouble - your former boss doesn't even ever have to know that you spoke to an attorney, investigated or called the ADA line. If you found out favorable information you could decide then whether it was wise to go any further with it.
- Megan
lynajalys
Sunday, November 15, 2009 at 01:29 AM
Thank you, Megan, for your advice. I just went on The College website and read their Human Resources Policies.The College does have a EOE policy in writing and also online that outlines the ADA, and states it's zero tolerance for discrimination, as well as a whole grievance process to go through. I will investigate first by contacting a lawyer, as well as calling the ADA line, then I will take it from there. Thank you again for you help and I will keep you posted.
Lenore
Hi Megan,
I am still in shock, and very upset about what has happened to me, but your reply is extremely helpful, with so many great suggestions, and I thannk you very much. I do know about CHIP insurance, but since my children have great coverage under their father's insurance I do not qualify. I live in New York, and I also do not qualify for any of my States low cost health insurance because my child support alone is more than the monthly requirements.
I never knew migraines were considered a disability, although I should have quessed it considering how debillitating they are. Although I would hate to cause any problems at my last job, I am going to follow each of your suggestions, and hopefully something will be of help to me. Also I was only pt, but I did pay into union dues. So there are many things to look into.
Thank you again for all your wonderful suggestions and support. I will absolutely let you know how I make out.
Sincerely,
Lenore