Legal Question in Disability Law in New York

I have been employed with my employer since 1999. During my time of employment I have been diagnosed with Narcolepsy. It has been on record with the company for several years. Despite my condition I have remained an employee in good standing within the company. I have consistently received above average performance reviews, I've earned 2 Outstanding Citizens Awards, and I have just recently received a promotion to Training Coordinator. I have always informed my supervisors of my condition so they would be aware should I have a problem.

Earlier this year, our HR Department began to enforce the tardy policy. The tardy policy states that you can not be late more than 12 times in a rolling calendar year. This policy had not been enforced in a very long time. I spoke to my supervisor and advised him of my medical condition and expressed to him my concern with the effects of this policy on my condition. My attendance percentage was well within the acceptable limit, but due to my condition, I am occasionally tardy. I also informed him that I was working with my Doctor to try new medications to improve my wakefulness. Last month, I began a new medication that made me quite ill upon awakening. This continued for 3 weeks. During the 3 week period I was late for work several times. I sent my supervisor an email and advised him of the situation. I also asked him about the situation being covered under the Americans with Disabilities Act. I received an email response saying he wanted to look into the situation. The day following my email, I was called to his office along with our union representative and given a verbal warning for my attendance. I again asked about the American's with Disabilities Act. Both my supervisor and my union representative dismissed my query and recommended that I get family medical leave. My supervisor also stated that being 2-3 minutes late could not be attributed to Narcolepsy. I tried to explain the condition to him and explain that Narcolepsy can easily make you a few minutes late or hours late. I told my supervisor and the union representative that I have an appointment with the specialist on May 24th. and I will have the Family Medical Leave paperwork filled out at that time. I also asked that they still look into the American's with Disabilities Act due to the fact that the Family Medical Leave would not cover me if I should happen to fall asleep while at work. I also provided them with a copy of the JAN publication regarding accommodations for employees with sleep disorders.

Earlier this week, I had an issue in the morning while preparing to come to work. I experienced a micro sleep episode while putting my shoes on before walking out the door. This episode made me 2 minutes late for work. I again, spoke to my union representative and supervisor and explained what had happened. I again requested they look into the Americans with Disabilities Act. I believe my union representative is trying to get information at this time. The following morning, before my Dr. appointment, I was called into my supervisors office. They had taken the next step in the disciplinary action and gave me a written warning and said that one more tardy would result in me losing my promotion along with a 3 day suspension. Although I was clearly upset, once again I had asked about the ADA. Again they ignored my request and would only talk of the Family Medical Leave. My supervisor did ask if changing my work hours would help since I work the early shift. (5am-1pm) but I explained to him that my work hours are irrelevant and that my problems would continue regardless of my shift. I explained to him that micro sleeps and automatic behaviors can not be timed or planned for.

I went to my doctors appointment as planned and explained the situation to him. My doctor filled out the Family Medical Leave paperwork but agreed that it needs to be covered under the ADA. He then proceeded to call the Director Of Medical Services for the company I am employed by. He spoke with the nurse because the Doctor is out of the country on business for the week. The nurse called the facility I work at and had a discussion with the HR manager at my facility. The following morning, I turned the Family Medical Leave paperwork in to the HR manager and she advised me that she will not approve my family medical leave until she receives both Legal and Medical consult. She also insist that the times I have been tardy will not be excused.

I am extremely frustrated and feel that I have handled this situation correctly but I feel as if they are intent on making this as difficult as possible. I have never been under so much stress at work as I have in the past few weeks. I would definitely appreciate some advice on this situation.

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