I just met with my employer's ADA represenatative and we had a lengthy discussion about adhesions, multiple surgeries, and the ADA. I came to the meeting loaded with information, most of which I garnered through this web site and various other sources over the years.
After I educated them on what adhesions are and what they can do, they said that there is absolutely no question that mu case is protected under the ADA. While the ADA can be quite confusing and intimidating to interpret, what it basically does is provide an umbrella of protection for those who have a condition that limits one or more of "life's major activities". If this limitation can be helped by the employer making reasonable accomodations for the person then they must do so. Each situation is reviewed on a case-by-case format. An employer may NOT use aribtrary standards in how it applies its Personnel decisions, especially those with disabilties or chronic conditions that are documented.
My situation is such that I am not given sick days as a University Professor. In light of recent surgeries in April 2001 and October 2001 I did indeed have to take days off for recovery and days here and there for flair ups. Nothing out of the ordinary. In fact just 7 days in the last six months, and that includes the October surgery! A certain individual at my employer was not happy with this and has taken action to block me getting my tenure, which I am now up for. After trying everything under the sun, I had no choice but to act.
Here are some key facts that I learned today about the ADA:
1)The determination of protection is granted solely on a case by case basis by the ADA representative within your employer. When you meet with that person be prepared as if you were going to court in order to back what you are saying. You must prove your case!!!!! As Denzel Washington says in one of my favorite movies, "Philadelphia", "Explain that to me as if I were a 6 year old". That is what you need to do.
2)The person evaluating your case is NOT an adversary, BUT will ask tough, pointed questions that you must be able to back with proper documentation.
3)Document, document, document everything. Luckily for me I am very anal retentive :) and have a file on me since I first got sick that is over 13 inches thick!!!
4)If granted protection, don't take this as a sign that you are immune. If, as in my case, I started taking 2-3 days off per week, then they have every right to terminate. The employer is not obligated to retain you if your disability prevents you from adequately performing your job, even with reasonable accomodations.
5)Try every avenue other than going to the ADA first. The ADA should be your choice of last resort, not a crutch to immediately use at any perceived sign of inequity.
6)This is a two-way street. You must be willing to give in order to get!
7)Prior to making an appointment with your ADA office, present your "case" to a Human Resource professional if you know or have access to one. Just as a sounding board. If you have HR professionals telling you that your case is out of whack then you might want to reconsider opening the whole can of worms and start another approach.
8)Contacting (or even threateneing to contact) an attorney should be the very last step. Once the threat of litigation is sniffed, you'll find the whole process becoming inifintely complex and expensive.
9)Once being told that you are protected, you must then file as a protected employee under the ADA.
For me, I asked for no special accomodations and will probably not file unless my next meeting with "Mr X" does not go well. My primary objective today was threefold - 1)to have my case documented, 2)to get the basic employment privilege of being allowed to take a sick day if needed, and 3)to not have my affliction with adhesions affect the proper evluation of how I do my job!
I hope this info helps and will keep you guys all updated. And thanks to everyone for the many many emails I have gotten the last two days!!! you all are to kind.....
-- JIM