I need advice on this situation...

 

Thesituation is that my fiance got sick on May 13th and was admitted to thehospital on May 16th with cellulitis in his leg, I took off the beginningof the week (May 18-20) because he had two surgeries... I've been at this company for 3 1/2 years but recently became an official employee and am still on probation and do not havetime accumulated to take off but it was an emergency. The company I work at does not have a human resources department so this is my problem... 

-Wefound out on May 19th he also contracted MRSA while he was in the hospital. Ihad been in contact with my supervisor and co-worker during this time and toldthem of his new condition, not really knowing what it was. 

-I wasasked on May 20th to go to the doctor and get checked to confirm I did not alsocontract MRSA. When I asked his physician and nurses they said it is notsomething I should be worried about because it is difficult to contract. I toldthis to my supervisor and still was asked to go to a doctor and getchecked. 

-I thenwent to an Urgent care on May 21st and was told bythe physician there that it was pointless to test me because I wasnot showing any symptoms of MRSA. I could not get a note fromany physician stating I do not have MRSA because I was not thepatient of his physician and the Urgent Care would not test me. 

- Hewas released on May 22nd and told he could go back to work by hisphysician. 

- OnMay 26th I tried to return to work and I was asked to leave until they couldfigure out what to do with me considering the situation. I am still off workbecause they have not determined what is appropriate. They have said I am"Working from home" but I don't really know what that means and therehasn't been anything for me to do from home. 

- Today,June 2nd, I received a voicemail from the Presidents assistant,stating that they still have not figured out what to do and that they wouldlike me to work from home for the rest of the week and requested the phonenumber of my fiancés doctor so she can call him and get a release note forme... I don't feel that this is appropriate because I am not the patientof the doctor and I feel like this is an invasion of my fiancés privacy.


What are my rights?

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  • basically the americans with disabilities act requires that for an employer to exclude an employee from the workplace based on a disability, the employer must obtain objective evidence that the employee poses a direct threat and determine that there is no available reasonable accommodation (that would
    not pose an undue hardship) to eliminate the direct threat.  if there is no disability, then the ada wouldn't normally come into play. however the ada also protects employees from discirmination if the employer regards them as having a disability even if they don't have one. i don't know enough about MRSA to say whether it would qualify as a direct threat, but at this point your employer has no evidence that you have it. i don't see how your fiance's doctor will be able to provide any relevant information about you. i'd work with your doctor and the employer to find a way to resolve this stalemate. maybe a doctor's note listing the symptoms of MRSA and stating you have none of them would satisfy your employer.

     


     
  • [quote user="regdunlop"]

    basically the americans with disabilities act requires that for an employer to exclude an employee from the workplace based on a disability, the employer must obtain objective evidence that the employee poses a direct threat and determine that there is no available reasonable accommodation (that would not pose an undue hardship) to eliminate the direct threat.  if there is no disability, then the ada wouldn't normally come into play. however the ada also protects employees from discirmination if the employer regards them as having a disability even if they don't have one. i don't know enough about MRSA to say whether it would qualify as a direct threat, but at this point your employer has no evidence that you have it. i don't see how your fiance's doctor will be able to provide any relevant information about you. i'd work with your doctor and the employer to find a way to resolve this stalemate. maybe a doctor's note listing the symptoms of MRSA and stating you have none of them would satisfy your employer.[/quote]

    But now add to this the OSHA requirement that the employer provide a safe workplace.

    The easiest thing for OP to do is see a regular doctor and get a note.  There are a variety of things urgent care providers will not do that a family doctor, general practitioner, or primary health care physician will do.  The employer is not generally entitled to a note saying that an employee does or does not have such and such a disease but they can demand documentation that a person is suitably healthy for work if they have reason to believe that the employee is not suitably healthy (this could actually fly under ADA inquiry due to OP's potential condition affecting the safety of other employees but, if not, there could be state restrictions here).  A doctor generally will not have a problem writing a note such as, "OP is physician authorized to work in an office environment with other employees."

    Alternatively, OP can press the ADA side of things and say that it is an unauthorized medical inquiry.  ER could counter that it is authorized because it pertains to the health and safety of other employees which makes it acceptable under ADA and under OSHA.  That exchange could go on for a long time, although it would have some benefit of providing OP with protection from future steps against her in that ER would have to have a good case in subsequent discipline and RIF actions to avoid any potential for a retaliation claim from OP IF OP prevails in such a claim.  However, I think ER's case is stronger under OSHA or ADA risk to others clause and the inquiry is acceptable.

  • I see that you have been given some info on the ADA so I'm not going to comment on that aspect, and also I don't feel it's your biggest concern at this point.

    As you stated, you are "kinda" new even though you have been there for 3 1/2 years and in your probationary period.  What you need to consider is do they value you as an employee?  Do they feel you provide benefit to the organization? 

    This could be a legit fear they have because Mersa is Very Contagious and it can lead to sepsis.  And NO ONE wants that!  I would call and request to talk to them IN A VERY COOPERATIVE FASHION and focused on resolving it.  Tell them your situation, having trouble getting it from clinic, but could go to PCP if necessary.  Inform them that he has been release to work and you could show that slip if necessary.  I'd try to hold firm on the notion that "we" (you and them, not his doctor) can work this out with a real positive and confident demeanor. 

    If you  have worked with them very positively and non-threatenly and they don't really work with you, then you can kinda guess that they are checking the books to see if they are legally safe to release you.  I would think the hold up is their willingness to assume the risk of potential litigation on this ADA issue.  In such case, you don't have much of a leg to stand on in-terms of trying to salvage your position in the company which is what I think is your primary concern (not to hang them for any wrongdoing).  If you are released, then you can consider the potential ADA violations.

    I wish you the best and I'm hopeful this will be resolved to your satisfaction and gainful employment.

    The best of luck to you and him!

     

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