Former Merck Employee Wins ADA Claim; Loses Under FMLA

December 17, 2001 ( - Former Merck security investigator Michele Alifano won one significant legal battle and lost another one in her fight for workplace protections because of her fibromyalgia and chronic fatigue syndrome.

US District Judge Curtis Joyner of the Eastern District of Pennsylvania said Alifano, who had worked for Merck & Co., based in Whitehouse Station, New Jersey, was entitled to disability protection under the Americans with Disabilities Act, according to a Legal Intelligencer report.

Alifano’s ailments “were interfering with her major life functions, including her work,” Joyner wrote in his opinion, citing Alifano’s claims of chronic fatigue, body aches and pains, headaches, nausea, palpitations, lightheadedness and insomnia.

Lawyers for the company had claimed Allifano was not entitled to an ADA shield because she only said that her illnesses meant she couldn’t work more than an eight-hour day.

But Joyner went the other way on the second part of Alifano’s battle. He threw out her demands for protection under the Family and Medical Leave Act. Merck had interfered with her FMLA rights and not necessarily violated them, Joyner decided.

Alifano’s FMLA claim fell short, Joyner said, because her suit does not allege that Merck denied her entitlement to leave or failed to restore her to her previous position.

Falling Ill

Merck hired Alifano in January 1998 and required her to spend a large percentage of her time traveling throughout the northeastern US.

In early 1999, Alifano became seriously ill with what was later diagnosed as fibromyalgia and chronic fatigue syndrome. She began a medical disability leave of absence in late June 1999.

In mid-September 1999, Alifano told Merck she could come back to work, but she couldn’t work for more than eight hours a day. She could no longer travel for work except commuting to the office.

The suit says that Alifano repeatedly asked Merck when she could return to work and was told that the company told her that it was trying to find a suitable position.

Alifano applied for several other positions at Merck, but without success. In December 1999, Merck offered her a security investigator position in Los Angeles, but Alifano says she declined the offer because it did not accommodate her medical restrictions.

Merck stopped paying her a salary in January 2000, but kept her under its employ to give her time to apply for other positions within the company.

But when she hadn’t returned to her security investigator position by late July 2000, Merck said she had abandoned her job and fired Alifano.

The case is In Alifano v. Merck & Co. Inc.