Laid-off/Legal recourse?

[zeddic]

Hi all, I was notified by my employer that I am being laid-off because of my poor performance last year. I was diagnosed with OSA 4 years ago but only started getting treatments last year. Since my OSA symptoms were not that severe I decided not to get treatment at the time. In late 2008, My wife had our first child and the disruption caused by having a newborn child in our lives resulted in significant weight gain on my part which seemed to have caused my OSA to get much worse.

I realized that I had become a danger to society since I kept falling asleep almost anywhere/anytime so I got a sleep study and started CPAP in April last year. That being said, I started CPAP treatment last April and it took some time for me to adjust to it. Additionally, I was sick a lot because of sinus infections (as a side effect of using the CPAP, or so my doctor tells me) and couldn't use the CPAP when I was congested anyway. In any case, I notified my employer of my diagnosis and told them I was being treated. Unfortunately I was struggling with my workload and did not perform to their satisfaction and received a bad performance rating. Then a week ago they told me that I was being laid off due to my performance last year.

I feel that my performance evaluation was unfair because I was still able to deliver my work assignments, just not on time. It took me longer because I was out sick so much and struggling trying to concentrate when I was not sleeping well. I am a software developer and it takes a lot of concentration to get my work done and it just took forever. In addition to all this our child was diagnosed with Adenoiditis and had infections almost every other month which took it's toll on my CPAP therapy as well since if our sick child couldn't sleep nobody else in the house could either... When my wife was pregnant they told her they were rating her performance based on the time she was actually working and adjusted her performance rating relative to other ppl in her group.

I tried to argue that why does that rule for pregnant women not apply to someone in my position who was out so much with a medical condition? I tried to appeal to management but they were not understanding at all. I tried to raise the issue with HR but haven't gotten a response.

I was wondering if anybody here has similar stories or have any advice for me to seek some sort of legal action for employee discrimination due to a disability? Does anybody know a good lawyer that understands OSA in the NY area?

[chunkyfrog]

To the best of my knowledge, sleep apnea is not yet considered a disability;
--especially in the case where the patient had the opportunity to receive treatment, but elected not to.
Sorry; maybe others have better news.

[howseanrolls]

the fact that you notified your employer during the process of getting diagnosed is great for you - I'd consult with an attorney, it sounds like you have a great foundation for a case.

Here in California, we're all at-will employees....they don't have to tell us why we're being fired, which makes it a bit harder to file a wrongful termination suit.

[chunkyfrog]

Same in the Cornhusker state; --right-to-work, and all that.
We have to cover our own butts; or we are so out of luck.

[BlackSpinner]

Can't help you with the work situation but this is totally wrong:

. Additionally, I was sick a lot because of sinus infections (as a side effect of using the CPAP, or so my doctor tells me) and couldn't use the CPAP when I was congested anyway.

When you are congested you use a full face mask. Plus unless you have some sort of allergy or reaction to the cpap materials , cpap treatment usually reduces congestion and sinus problems. Many people however need to play with their humidity settings to get the right results.

[robysue]

Can't help you with the work situation but this is totally wrong:

. Additionally, I was sick a lot because of sinus infections (as a side effect of using the CPAP, or so my doctor tells me) and couldn't use the CPAP when I was congested anyway.

When you are congested you use a full face mask. Plus unless you have some sort of allergy or reaction to the cpap materials , cpap treatment usually reduces congestion and sinus problems. Many people however need to play with their humidity settings to get the right results.

BlackSpinner,

According to Dr. Barry Krakow, for folks with nonallergic rhinitis who are sensitive to wind and pressure changes before being diagnosed with OSA, going on CPAP can indeed make their sinus and congestion problems WORSE because their nasal and sinus passages are being overstimulated by the wind and pressure provided by the CPAP machine. Watch the "nonallergic rhinitis" module in his Nasal Breathing Video Series for a very interesting discussion of this problem. For what it's worth, Dr. Krakow recommends a heavy dose of UNDERSTANDING for these patients and extra care and attention for figuring out how to properly clear the congestion and how to keep the nose and sinuses clear of congestion before starting xPAP or during the very early stages of xPAP. Patients with serious nonallergic rhinitis problems have a high risk of having difficult adjustment periods and of not tolerating CPAP therapy very well; and without additional appropriate support, they have a VERY high risk of simply giving up.

[jules]

sleep apnea can be covered under ADA and reasonable accommodations can be made if requested by an employee

however most people don't follow the appropriate procedure of asking for accommodation under ADA - just telling your employer you have this problem might not be sufficient - it might be too depending on how nice the employer is

however if you ask for accommodation, you probably need a letter from a doc indicating what accommodations are necessary - you also are expected to perform your jobs at an acceptable level - that is the part of the catch

the accommodations asked for must be "reasonable" - reasonable is determined by the employer and not any one else and that is the rest of the catch - that is how I lost my job

check JAN - job accommodation network website for further information

[archangle]

There are a lot of lawyers who will run up a lot of hours on a fee basis and take the money and not tell their client that they don't have much of a case. You hear a lot about people winning cases or getting settlements. You don't hear as much about the people who really get hurt by legal bills.

Read up on the medical leave law. Employees may have to formally apply for leave ahead of time and take time off without pay before it comes into effect.

[Guest]

Can't help you with the work situation but this is totally wrong:

. Additionally, I was sick a lot because of sinus infections (as a side effect of using the CPAP, or so my doctor tells me) and couldn't use the CPAP when I was congested anyway.

When you are congested you use a full face mask. Plus unless you have some sort of allergy or reaction to the cpap materials , cpap treatment usually reduces congestion and sinus problems. Many people however need to play with their humidity settings to get the right results.

What I meant was that the sinus infections were not caused BY cpap by itself. Whenever I have some slight mucus build up, from allergies or what not, and I use the nasal pillow with my CPAP, my doctor theorizes that the air pressure drives the mucus up into my sinuses which then causes the infection. Believe me I have tried a full face mask when I am congested and it just doesn't work for me, I wake up with dry mouth and throat and feel worse. Instead I've learned to really be on top of my allergies to avoid congestion in the first place and if I do get congested I use nasal sprays right before putting on the cpap.

[zeddic]

Thank you all for your responses, it sounds like I'm up the creek without a paddle in this case. I did read the info in the JAN website, I guess the best bet for me is to take the severance package and forget trying to fight it legally. Ah well, time to tighten the belt and hope for the best.

[msradar65]

I'm sorry but I think you are up the creek without the paddle. Having been in your place with my rheumatoid arthritis and my employer. Take the money and run. God never closes one door without opening another door or a window.

Sounds like you had a lot of major life events going on at one time....and unfortunately did not accept help in time to get past the bumps.

I would use the time off to spend with family, polish your skills for a new position...and move on. I just recently did a major career change, divorce, move and went back to college full-time....also went on CPAP. I feel wonderful and never been happier.

It does get better!

[NightMonkey]

... it sounds like I'm up the creek without a paddle in this case.

You were given a paddle four years ago and decided not to use it until you hit Class IV rapids:

I was diagnosed with OSA 4 years ago but only started getting treatments last year.

I guess the best bet for me is to take the severance package and forget trying to fight it legally. Ah well, time to tighten the belt and hope for the best.

I think you are making the right decision. Get your CPAP therapy optimized and be aggressive about maintaining good health and move on from here.

Most people do not have the combination of aptitude and fortitude needed to do your line of work, so hopefully you will land on your feet quickly.

[dae3dae3]

First of all you didn't get laid off. You got fired for poor performance. There is a difference. They created the paper trail with the bad performance review so there is little chance of you getting any recourse through appeals.

I know this post is very abrupt and maybe even offensive to you but you need to stop wasting time trying to force people who don't want you to take you back.

I've been fired before for completely fabricated reasons. It sucks. It turns out it was the best thing that ever happened to me because I am now at a much better job that I would never have known about if I hadn't got canned by the jerks at the previous place.

You don't want to work for them. You might have in the past but that is the past. It would be awful trying to work there even if you did somehow manage to force them to take you back. Can you imagine how you would be treated by the firing manager who was overruled?

[archangle]

I feel it IS important to fight against improper discrimination.

I'm just warning you that fighting it isn't easy. You don't usually just talk to "the discrimination authorities" and they take care of it for you. Even if you have a good case, it can be a long, painful, expensive process with uncertain prospects for victory.

I'm not sure I'm convinced that your situation as you state it qualifies as "real" discrimination, either.

This is also another caution for the "I can't handle CPAP, I'm quitting" crowd. Whether it's discrimination or not, apnea could cause you to lose your job.

[GumbyCT]

Thank you all for your responses, it sounds like I'm up the creek without a paddle in this case. I did read the info in the JAN website, I guess the best bet for me is to take the severance package and forget trying to fight it legally. Ah well, time to tighten the belt and hope for the best.

1st -You should know that HR is the company's lawyer's who advise their managers how to dispose of people within the boundaries, how to get it right.

2nd - the only ones who win in litigation are the lawyers. Most don't care what the outcome is. You will most certainly find someone who will take your money.

3rd - even IF you had the money and could win, they would just find another reason to dispose of you. Do you want to work in a place like that?

They say everything happens for a reason, make the best of it.

Happiness is "that place" in the rearview mirror

There will be life after "that place".

Good Luck