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Can FMLA Time Be Counted As an Attendance Hit

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  • 04-10-2017, 07:51 PM
    sleepyandconfused
    Can FMLA Time Be Counted As an Attendance Hit
    My question involves labor and employment law for the state of: Oregon

    My employer is a privately owned company with >50 employees.

    I was recently diagnosed with narcolepsy and put on FMLA. Over the course of a month and a half I had several fatigue attacks that caused me to leave my desk with little warning. On the third month, I was placed on a side project with flexible hours so that I could acclimate to a medication that would stabilize me. It was my impression that as long as I was able to do my job, after the side project I would return to my normal position. Instead I was told that I could only return to my old position if I signed a statement that said I would no longer use FMLA time. My narcolepsy was managed, but it can't be cured, so I told them that there's always the chance that I might have symptoms. They put me on a fourteen day unpaid leave and said that if I still needed FMLA after that, I could apply for STD.

    I was put on leave on 3/1, and I'm still on leave today. Since I'm able to work, and my sleep doctor told STD that I should be working full time, I'm of course ineligible for disability funds. I've gone back and forth with my HR department this entire time trying to come back to work, but they refuse to let me if I insist that I might need FMLA. Today, the vice president in charge of HR let me know that I can come back to work and use FMLA, but all FMLA leave has to be preapproved. If I have anything like a fatigue attack, that FMLA will be counted as an attendance hit. Then, if I would get written up for poor attendance, I may choose to go back on unpaid leave instead.

    I'm not a lawyer, but isn't this not OK? I've told them multiple times that I am not having symptoms and probably won't have symptoms, but they won't let me come back to work until I agree that unexpected fatigue attacks aren't protected. My suspicion is that they're just tired of bothering with me and are trying to fire me one way or another. It's all been super shady; I've had to email them to confirm in writing what they've told me verbally, I've had to insist that my manager be copied on emails, and they spent forever poring over my project trying to find something wrong. I had to forward their email to the STD claims handler to prove that they said that sudden onset symptoms weren't protected. They also hired the temp that was covering for me.

    Is there anything that I can do? Is my best course of action to just agree and go back to work?
  • 04-10-2017, 08:23 PM
    hr for me
    Re: Can FMLA Time Be Counted As an Attendance Hit
    Need more information -- what are your actual duties?(for example if your narcolepsy affects the safety of you running a machine, that's more of an issue than if you are an accountant sitting at a desk staring at a computer and spreadsheets).

    Has your doctor been able to classify your issues as an ADA defined disability and/or in need of time off to deal with the issue? Have you missed more than 3 consecutive days of work for this condition -- and does it affect major life functions? The employer can refuse to let you return to work if you are not 100% fit for duty, but can not require you to take off more time than you need (subject to some possible scheduling issues) for FMLA leave. Which might seem contradictory, but not if you aren't 100% fit for duty (and that depends on your duties as I mentioned above)

    Under FMLA, employers can require you to give as much notice as possible for need for timeoff. Here is what the DOL states on intermittent leave " Employees may not be required to take more FMLA leave than necessary to address the circumstances that cause the need for leave. Employers may account for FMLA leave in the shortest period of time that their payroll systems use, provided it is one hour or less. (See CFR Section 825-205)
    Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job."


    Has your doctor documented the fact that your condition could occur at any time? Have they documented how often the attacks are happening/expected to happen? If you are going outside of what has been documented, you need to get updated documentation to your employer ASAP. They are only required to go by what they have and can request further information if needed.

    How much time have you actually missed in those 3 months?

    Much of what they are saying could possibly be misunderstood, or they could possibly be trying to terminate you for having the condition (both of which could be very stupid on their part) or you could be misunderstanding the why behind what they are saying (example what I have written above)
  • 04-10-2017, 08:52 PM
    sleepyandconfused
    Re: Can FMLA Time Be Counted As an Attendance Hit
    Quote:

    Quoting hr for me
    View Post
    Need more information -- what are your actual duties?(for example if your narcolepsy affects the safety of you running a machine, that's more of an issue than if you are an accountant sitting at a desk staring at a computer and spreadsheets).

    I'm inbound customer service. I answer calls and chats, and respond to support emails. No heavy equipment for me.

    Quote:

    Quoting hr for me
    View Post
    Has your doctor been able to classify your issues as an ADA defined disability and/or in need of time off to deal with the issue?

    I'm not sure; she initially filled out the FMLA forms, but we haven't filled out anything for an ADA. My employer did ask me to fill out an ADA form instead of filing my FMLA papers at the very beginning, though.

    Quote:

    Quoting hr for me
    View Post
    Have you missed more than 3 consecutive days of work for this condition -- and does it affect major life functions?

    With the vital caveat of as long as I have my medication, no, it does not affect major life functions. I can function normally, although there's always the risk of a fatigue attack. Without my medication I am incapacitated.

    Quote:

    Quoting hr for me
    View Post
    Has your doctor documented the fact that your condition could occur at any time? Have they documented how often the attacks are happening/expected to happen?

    They have, but things have changed now that I'm on this medication. I'll get an updated form from my doctor right away. On the note of them being able to ask about how frequently it would happen -- they had originally said that they would track how often I needed unexpected leave and if they found it excessive, they would take disciplinary action. I asked them what frequency they would consider excessive so that I could check with my doctor to make sure that we were setting the right expectations...and that's when they replied to tell me that unexpected leave would just count as an attendance hit instead.

    Quote:

    Quoting hr for me
    View Post
    How much time have you actually missed in those 3 months?

    The first two months I missed six hours and 3.25 hours. January and February -- my months on the side project -- were hell, because I was titrating on Xyrem. I don't know how much I took but it was prodigious. At the end of February I was still a little shaky; I probably did need the rest of the week and the weekend after to get set to rights.

    I desperately want this to be a misunderstanding. And it is disruptive when someone has to just stop working. I wish they would just say, "Ms. sleepyandconfused, that puts an undue hardship on this company." I wish they'd just said it March 1st, at least. The only time that I've gotten a somewhat clear answer to a question was after the STD claims rep called them back to ask why they wouldn't call my unexcused absences FMLA.
  • 04-11-2017, 09:54 AM
    hr for me
    Re: Can FMLA Time Be Counted As an Attendance Hit
    If they asked you to fill out ADA forms and you didn't, then it is on you to get them done and to go back to them with a reasonable accommodation -- that's where undue hardship can come into play. ADAAA has a section on mitigating factors, and they can NOT be taken into account -- so the fact that medication controls the situation most of the time doesn't mean that it doesn't fall under the definition of disability. I think your best bet is to talk with your doctor about reasonable accommodations, but do realize the employer doesn't have to give you what you ask for, but does have to work with you to find some thing that accommodates. That might be some timeoff, but usually it is something that allows you to stay on the job to perform the essential functions/duties.

    On the FMLA front, if you took all of Jan/Feb (and any other time before that in the last 12 months for any FMLA-protected reason) and they use rolling years, it is possible you are out of FMLA protected time since you only get 12 weeks per year. The employer has to disclose what FMLA time calculation they are using (calendar year, rolling year or some other 12 month consecutive period). If they don't disclose it, then it is the one most useful to the employee. Once you are out of FMLA time, yes they can dock you for attendance issues even those related to this -- with the exception of reasonable accommodations under ADA (which timeoff may or may not be).
  • 04-11-2017, 08:20 PM
    sleepyandconfused
    Re: Can FMLA Time Be Counted As an Attendance Hit
    They started a new year on 1/1 and I was put on leave on 3/1 so I've still burned through several weeks, but not enough for it to be dire. Unless we're talking about finances, in which case things are extremely dire.

    I'm going to make an appointment with my sleep doctor to get updated FMLA forms and to fill out an ADA form. From there, it sounds like my company will need to either enter into the interactive process with me or...what happens if nothing changes and they refuse to accept FMLA for sudden onset symptoms, and won't give me any concession for them?
  • 04-12-2017, 07:33 AM
    hr for me
    Re: Can FMLA Time Be Counted As an Attendance Hit
    They are required by ADA law to have an interactive process. If they choose not to, you file a claim with the DOL, but I suggest you make very very sure that you follow all of the employer's call in procedures when needing time-off under either law. After filling out ADA and/or FMLA paperwork, you should not be required to bring a dr's note for each occurrence but the employer can ask you to recertify every 6 months unless there is a change (such as needing more than originally stated).
  • 04-12-2017, 07:59 AM
    flyingron
    Re: Can FMLA Time Be Counted As an Attendance Hit
    FMLA may work here. ADA isn't likely to. Allowing the employee to unpredictably leave and not working on the spur fo the moment is not the sort of accommodation that the ADA mandates
  • 04-12-2017, 08:46 AM
    Taxing Matters
    Re: Can FMLA Time Be Counted As an Attendance Hit
    Quote:

    Quoting hr for me
    View Post
    They are required by ADA law to have an interactive process. If they choose not to, you file a claim with the DOL, but I suggest you make very very sure that you follow all of the employer's call in procedures when needing time-off under either law.

    Enforcement of violations by employers of the Americans with Disabilities Act (ADA) is done by the federal Equal Employment Opportunity Commission (EEOC). The EEOC is a independent federal agency and not part of the federal Department of Labor (DOL). Note that you must first file a timely complaint with the EEOC before you may file a lawsuit for an ADA violation. Information on filing a complaint with the EEOC may be found here: https://www.eeoc.gov/employees/howtofile.cfm

    Employer violations of the federal Family and Medical Leave Act (FMLA), on the other hand, are enforced by the Wage and Hour Division (WHD) of the DOL. It is not required that you file a complaint with the DOL prior to filing a lawsuit for violations for the FMLA, but it may still be useful to do so. Information on filing a complaint with the WHD is located here: https://www.dol.gov/whd/howtofilecomplaint.htm
  • 04-12-2017, 01:14 PM
    sleepyandconfused
    Re: Can FMLA Time Be Counted As an Attendance Hit
    Thank you for your replies. This is a very scary and stressful situation. I completely agree that spur-of-the-moment absences are disruptive; do you know any accommodations for this sort of thing? It's very similar to an epileptic person who's medicated, but will always be at risk of a seizure.

    So it the plan now is:
    - Get/file updated FMLA and ADA forms
    - File EEOC and WHD complaints if they continue to try to deny use of FMLA/refuse to help with accommodations for sudden onset symptoms
    - Continue to look for work elsewhere

    Is that about right? I have a lawyer who's willing to write my company a letter stating that they're going about this the wrong way, but with no income, I can't hire them. Should I accept their terms and go back to work, or would that mean that I'm willingly waiving my rights?

    I'm not sure if it helps but since I work remotely, I have all of this either in writing or recorded. (One-party consent states.)
  • 04-12-2017, 02:05 PM
    PayrolGuy
    Re: Can FMLA Time Be Counted As an Attendance Hit
    You might want to read through this website. It has some information on ADA and Narcolepsy.

    http://askjan.org/media/Sleep.html
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