Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Monday, November 7, 2011

Can My Boss Hold My FMLA Against Me?

I received this question from calistair:

I have MS, every 4th Friday I have to take off work for a treatment. I recently asked to take 2 hours of PTO on a Friday afternoon. My supervisor responded via email with "The remainder of the group has covered Fridays for you". When asked twice via email what she meant, she came to my desk and verbally stated "On the Fridays of your infusions" I said "Oh no, that's under FMLA". This is 2nd time she has used my FMLA time against me. The first time, we were discussing the department budget and she told me that my reduced work hours (32.5/week) was causing others to work OT, which in turn has caused our department to be over budget. What can I do?

Now, obviously the first thing I advise is to talk to an attorney in your state. I’ll give you some general information on FMLA, which will hopefully help point you in the right direction in the meantime.

Based on your question, it looks like you’re on intermittent leave. FMLA allows up to 12 weeks of total leave in a calendar year, so if you need every 4th Friday off you are using 13 days of FMLA, roughly 2 ½ weeks. You are certainly covered under the law for this, assuming the employer has at least 50 employees and you’ve been there at least a year. Some states also have medical leave laws which might provide more protection.

Here’s what an employer can and can’t do while you’re on FMLA leave:

PTO use: Your employer may require you to take paid leave concurrently with their unpaid FMLA leave. All forms of paid leave are treated the same. Paid leave taken concurrently with FMLA leave could include vacation time, paid personal leave, and paid sick and medical leave. The employer may waive any procedural requirements for the taking of paid leave and you are always entitled to their unpaid FMLA leave even if you do not meet the employer’s requirements for taking paid leave. If the employer is not making you use your PTO for the intermittent leave, you should be entitled to use it like anyone else.

Retaliation: The employer is not allowed to use your FMLA leave against you. They can’t write you up for poor attendance, ding you in performance evaluations for excessive absenteeism or for failing to perform while you were on leave, demote you or fire you for taking leave. However, if they discover performance issues or dishonesty while you’re on leave (say a coworker covering for you finds out you embezzled millions), then they can fire you or discipline you. If the supervisor is retaliating, you probably want to report this to HR, in writing, as a “Formal Complaint of FMLA Retaliation.”

These are the two parts of FMLA that seem to apply to your situation. Other things you might need to know about FMLA are:

Perfect attendance: Employers may deny you a perfect attendance award for taking FMLA leave if employees taking non-FMLA leave are treated the same.

Contact with health care provider: Your employer may communicate with your health care provider to get information required by the FMLA certification form. The employer’s designated representative to communicate with the health care provider must be a health care provider, human resource professional, leave administrator, or a management official, but cannot be the employee’s direct supervisor. Employers are prohibited from asking health care providers for information other than what is required by the certification form. If the employer determines that a medical certification is not complete or is insufficient, the employer must provide written notification to you of what information is lacking and give you seven calendar days to cure the issue. Employers may request a new medical certification each leave year for medical conditions that last longer than one year. Employers may request recertification of a continuing condition every six months.

Fitness for duty: An employer may require the certification to address your ability to perform the essential functions of your job. In the event that reasonable job safety concerns exist, an employer can require a fitness-for-duty certification before you may return to work when you take intermittent leave.

There are many more requirements and responsibilities under FMLA that may apply to you. These are some of the most common issues. I hope this helps. Good luck!

29 comments:

  1. Interesting! So am I interpreting this correctly in thinking that if I am eligible for FMLA, and I request every Friday for that leave, that my employer can count that as my paid vacation (assuming I do, indeed, have paid vacation)? Do you legally have the option to take unpaid leave if you are eligible under your employers rules for paid leave?

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  2. From http://www.dol.gov/whd/regs/compliance/1421.htm

    "Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave."

    So basically it's up to your employer. In my experience, they're more inclined to require that you use your paid days off concurrently, because otherwise the sequential addition of FMLA time off to paid time off can mean a leave of a length that's really problematic for a workplace.

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  3. Yes, Kimberlee. Great point! The employer can make you use your paid leave. You can't insist that you take it unpaid.

    fposte, you got it exactly right. You can say you want to use your paid leave during FMLA even if the employer doesn't say you have to. But mostly employers want you to use up your paid time. They don't want you to come back from FMLA and then take a vacation.

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  4. While on FMLA my company moved me to another position in the company, in the same building. Can I be legally moved out of my position while on FMLA or must my company put me back in my same job/position upon my return.

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  5. They're supposed to restore you to the same or an equivalent position. You might want to talk to an employment lawyer in your state to have them go over your old and new position to see if it is equivalent under FMLA.

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  6. What if Im a salaried employee can they switch me to hourly pay so they dont have to pay me my full pay

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  7. If I am a salaried store manager and Im using intermitten FMLA can they change my pay to hourly so yhey dont have to pay my full wages

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  8. Hi dizzle. That sure doesn't sound like they are following FMLA. I'd suggest talking to an employee-side employment attorney in your state. You might try http://www.nela.org to locate an attorney near you.

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    1. Donna, my employer didn't provide me with proper information regarding updating my fmla paperwork and lost my short term paperwork for 2 months. I have sold everything I own just to get to appointments and pay the charge for the fmla paperwork. They have fired me today because one doctor will not fill out my paperwork until my follow up. My HR Rep told me she could go back on the fmla from the first set of papers, now all of the sudden, she tells me she cannot for the second and third. Consequently puting me over my points.
      Should I speak to a employment attorney?

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  9. Hi Shawn. I'm sorry to hear about your troubles. "Lost" paperwork is one of the tricks unscrupulous employers use. Yes, I would definitely suggest talking to an employee-side employment lawyer in your state.

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  10. In a morning plant meeting the director of operations said "we have people on fmla for migraine head aches" the hr director said to him "you don't want to go there" the director of operations replied " yes I do". Now I have fmla for a family member. Can a management person just say something like that legaly. Too all of the emPloyees on that shift? Do I have any legal recourse?

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  11. Hi Wulf. One comment does not make a case. However, if they deny your FMLA leave or if your supervisor retaliates against you or interferes with your taking it, the comment could be evidence of their illegal intent.

    You might want to talk to an employment lawyer in your state if they deny the leave.

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  12. Hi from Ohio,
    My husband is on FMLA since we found out I have Breast Cancer in April. He is (was?) salary at a company with a PTO/NoPTO policy which before he filed FMLA meant that as long as you were getting your work done and were present at required meetings there was no problem with working from home on days when you are not needed in the office as long as you are still reachable by phone/email or both.
    He asked for a week off when I had my big surgery as well as a few other days off for minor surgeries and half days for my appointments every other week.
    His employer claimed he had to complete 40 hours of work during his week off even when he explained that he needed the time off to take care of me and the children and wouldn't have time to get that much work done. They then wrote him up when he got back at his next review for not completing his work.
    They used to accept work/projects accomplished as proof that you were working, but since he filed they now require a detailed itinerary each week. They have started asking him to do more than should be possible in a 40hr work week especially on weeks when I have an appointment.
    They changed him to an hourly employee so that they can dock his pay for the hours he is gone on those weeks even though he works as much as he has to, to finish all his assigned projects each week.
    They have stopped inviting him to meetings that he would normally need to be in attendance to be included in the sharing of information.
    It has generally become a fairly hostile environment for him and he feels like they are trying to make him quit, especially since telling him that he was "lucky that his wife's surgery didn't hit the insurance until after the renewal point". (One of the benefits of his job is the large amount of insurance that they provide to their employees.)

    Is all this really legal? Are they really allowed to try to bully him into quitting because he is costing them more money on insurance that they provide??

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  13. Hi NuMommie. If he was there at least a year before his leave started, and if there are 50 or more employees within a 75 mile radius of his work location, it sounds like they might be engaging in FMLA interference. You might want to talk to an employment lawyer in your state to discuss your options.

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  14. I was authorized FMLA and the day I returned they dissolved the department I was the lead over, they said it was not profitable (I can prove it was as I did the reporting of the numbers), they moved me to a new position then weeks later told me that the position I was put in was not qualified for Salary, which also meant I lose my PTO and Holiday pay, the breakdown of the hourly wage is staying the same.

    I let them know I didn't think that was fair, and it got put on the back burner, then 57 days after my return to work after surgery they told me I am going to hourly and they fulfilled their obligation of keeping me at the same for 90 days, I let them know it had not even been 60 days.

    I refused to sign the payroll change form, stating I feel it is against my legal rights, they told me if I don't sign it they can't keep me in the current position and they don't have another one available at this time. I was then made to feel like they wanted me to quit as I was told to go home and evaluate whether or not keeping this job was worthwhile and I was to report the next day and let them know if I was resigning. I let them know I never said I was quitting, he said ok you don't have to sign the form, I am going to put it in your file and we will change you to hourly.

    Can they do this?

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  15. Hi Northcoastgrl. It sure sounds like you have potential FMLA claims. I would suggest talking to an employment lawyer in your state.

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  16. Is it illegal for my boss to dicuss my FMLA usage with my coworkers? I am 6 months pregnant and use FMLA for my doctors appointments and "morning sickness". I have used 5 days of the 12 weeks. I had a coworker come to me the other day and tell me that my boss discussed with her and two other coworkers the details of how much FMLA time i have used. Upon hearing this news, I went straight to my boss and told him that I didnt appreciate what he had done and to not do it again. He openly admitted it was wrong and said he wouldnt do it again. Now i feel if i use my time people will hold it against me.

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    1. Hi aliciaclementine. It sounds like a potential HIPAA violation. You might want to report it to HR. You should go ahead and continue to use your time. You are legally protected if you use it. If he does anything to interfere with your FMLA usage, talk to an employment lawyer in your state about your rights.

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    2. Thank you very much for your time and your advice. i appreciate it a lot!!

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  17. Hi Donna...A few months ago I was summoned to a meeting in H.R. with my manager I also had union steward present I was told they wanted to drop me to part time from full time due to my FMLA useage. Now my manager has told my that my FMLA useage hasn't improved and on Jan. 5th he will be dropping me to partime status me with reducing me from a fulltime employee to a part time hours due to the frequent use of my Intermitent FMLA useage ( am under my 12 weeks.) Saying something about policy...meaning the employers policy. Also I will lose my shift differentials and could get as little as 34 hours.Can they do this? I will lose everything if this happens as a take care of my ill daughter alone. My manager also said that he would think about leaving me full time if I come to work everyday that means he wants me to work even when I am ill. Please help because H.R. is in on this.

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    1. Sounds like a potential FMLA violation. You should talk to an employee-side employment attorney in your state about this.

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  18. Hello, I found out that I was pregnant on 11/26, and told my manager on 11/27. I found out about the FMLA forms for prenatal care visits and intermittent FMLA that could be taken for complications during pregnancy by a co-worker several days later. I filled out the prenatal care visit form, and was approved for that. I missed a day due to morning sickness that would not allow me to go into work. I called in prior to my shift starting, citing that it was morning sickness, and my midwife filled out the intermittent FMLA form for it. My employer declined it the first time because it was not filled out appropriately. I went in see my midwife on 1/21 (the absence was 12/26) and she went over the form with me and filled it out completely, including a referral to a physical therapist for sciatica that has been caused by my pregnancy. They contacted on 1/25 and told me that they couldn't approve it for the following reasons: 1) I had not been seen by a doctor to treat me for severe dehydration due to morning sickness and 2) I had not been prescribed any anti-nausea medication. The physical therapy was also declined because 1) I had not set up any appointments yet (I was waiting until I was approved, so that my job was protected. My company has a very strict attendance policy) and 2) They said that they cannot accept a mere referral from the doctor. My case manager said she would submit it for a peer review. When I hadn't heard anything back from them by 2/1 (today), I called to see if I could find out the status. I was told that my case manager had made a note in the case (that was not discussed over the phone when we talked on 1/25) that the peer review could not take place until I had officially scheduled an appointment for the physical therapy. I am nervous that if I do schedule the appointment, take the appointment, it may still come back declined, which could potentially leave me with no job. There had been no further contact with me to indicate that they were waiting on action from me. They had also indicated that they could not approve the day I missed for morning sickness because they are unable to approve absence for morning sickness retroactively, and that my doctor would have had to fill out the FMLA form prior to me missing that day and provide a medical statement to prove that the morning sickness was severe enough to warrant FMLA. I am wondering if this is something employers are able to do? In my reading of the FMLA, incapacity due to severe morning sickness does not have to be confirmed or seen by a doctor. And the fact that my doctor confirmed that I had been having morning sickness for a while before then should have been enough; as well as the fact that the sciatica was placed on the FMLA form as being caused by pregnancy. Are they able to deny my FMLA request due to the reasons that they cited, or am I way off base in my understanding of the FMLA?

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  19. Hello,

    My doc just filled out my FMLA paperwork and I received the paperwork back from my company saying I was approved for FMLA and I just received a phone call today saying I have to see a independent evaluation. Can they do that if I have already been approved? Also they said my doc did not give enought information

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  20. I have chronic insomnia and am on FMLA. Where I work we are on 10 hr. days (5am-3:30pm) 5 days a week. My doctor wants me on 8 hr.days (6:30am-3pm)for several months to see if this different work schedule works. My question, do I have to have accumulative FMLA time to be approved?

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  21. My boyfriend was diagnosed with bi-polar disorder with psychosis about 5-6 years ago. He has been able to manage his disorder well without hospitalization up until about bout 4 months ago. In July 2013 he had a severe manic episode that required him to be hospitalized for 4 days, due to the severe episode he no called no showed for work but later that same day his employer was contacted regarding the situation and they approached us with the FMLA paperwork. He filed the paperwork with his employer and returned to work that next week but with a reduction in hours per the recommendation of his doctor and therapist. Then unfortunately he had another episode the last week of October 2013 where he was hospitalized for 4 days and then 24 hrs later he was back in the hospital for another 5 days. I had been in contact with his employer regarding this current situation since he was not coherent enough the first few days. When he was able to he contacted his employer at which time he was told he was still employed but was not given a day or time for him to return to work, they stated he needed to fill out the FMLA paperwork first. So he had his doctor once again fill out the paperwork and fax it over to the HR department , he also requested his 36 hrs of accrued vacation pay, but was told he couldn't use vacation time which made no sense since he was able to back in July. A few hours later the HR department contacted him and fired him. They claim the let him go because of 3 no call no shows and that I had told them he didn't want to return to work which I did not, I told his employer that he was in the hospital and that I was unsure of how long he would be hospitalized and that I didn't know the situation regarding his employment, that is was only something that could be decided between him and them. It took them over a week to decide to let him go. It was only after he requested his vacation pay that they became hostile and then fired him. Can they do this? even tho he was released by his doctor to return to work.

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  22. Hello, Currently I work for an IT company and am currently on FMLA. To fill you in briefly I have been with the company almost 6 years. There is no aspect of my job that cannot be done remote and I have been leading the department in numbers even while on remote status. The company stated I have to drive to the office one day a week. I have been unable to so I have had to take unpaid leave every Thursday. Now the company is saying I need to drive their 2 -3 days a week. Again my job can be done 100% remote and I cannot drive due to Epilepsy. When asked why even when I am working 32 hours less per month than other employees and my numbers are still above theirs I was told that my performance was not a factor in the decision but it was a new company policy. Lastly there are other employees who have no medical condition yet are allowed to work remote. If my performance was an issue I would understand but this seems like they are trying to make me intentionally burn up all of fmla and is a push out. Is this legal in any way?

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  23. I left on maternity leave i filled out my fmla papers and when i returned they had no position for me i was full time and all they had was part time i took it cause i needed the money but they promised me fulltime when they had an opening they wouldnt give me my vacation time because i had partime status its been a year and still no vacation time or sick time what should i do can they do this to me?

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  24. I have had FMLA intermittent leave for 3 years now due to fibromyalgia and migraines. I have a lot of flare's on Mondays and my employer stated that FMLA didn't allow me to take just Mondy's and that wasn't a condition of FMLA. They also stated they were familar with the condition so they "knew" - can they tell me which days I am "allowed" to have flares???

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  25. About lost paperwork.... I have a very mangled scenario. I hurt my back (work related) work comp paid for a clinic visit, did an interview on the phone so on. However, days I missed were held against me. I didn't know much about fmla and it wasn't suggested. I did attend PT. Moving on..my eval was terrible for reasons: safety: hurt my back (I was using a shovel, I was told to clean with it), attendance (days missed for my back), productivity(since i wasn't there i can't have high productivity). Thats part one. Now onto my other issues...my wife has hyperthyroidism and hypercalcemia. I took her to the ER on several occasions. Even talked (with supervisor) about what was wrong with her after these visits to the hospital. I was suspended for 3 days. After finally getting FMLA through (start of her health problem was dated to May) I requested those days and my work related injury days to be removed so they can't hold them against me. I'd also like a new eval, maybe the loss of income(eval before didn't give me a raise) and the 3 day suspension to be paid for. I had a meeting with HR, now they can't seem to find my doctor notes; they told me they have no idea what days were missed for what. What should I do here?

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