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    ADA RETALIATION TRAP

    A recent case involved a social worker for a company that ran dialysis clinics, who had suffered from severe depression, anxiety and sleeping difficulties for many years. Feeling overwhelmed by the demands of a new supervisor, she had her doctor certify that she suffered from a serious health condition and was provided 12 weeks of FMLA leave. Shortly before her scheduled return, she asked for a reduced schedule that would work into a full-time schedule. She was terminated based on the company saying that it no longer needed as many social workers. Two months later the company advertised for a new social worker, and she was not offered the job. Although the court found that she had no disability because her condition did not substantially impair a major life activity, it found that her request for accommodation was a protected activity and could be the basis of a retaliation claim as long as she had a good faith belief that the requested accommodation was appropriate. The timing of her termination also was thought suspect in regard to an FMLA retaliation claim. Pandry v. Bio-Medical Application (D.C. Minn. 2009)

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    comment 1 Comment
    • Maureen Grant
      03-29-2010
      Maureen Grant
      My understanding of the revised ADA regulations would classify this person as disabled. It is unfortunate the employer in this case did not appropriately respond to her request for a reduced schedule by saying they could not do so for business reasons. Reasonable accommodation does not require the employer to create a new position for an ADA eligible employee, i.e. full time to part time. Advertising for the position so soon after the termination was probably not wise.

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