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  1. #1
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    Feb 2008
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    Default 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)

  2. #2

    Default Re: Can FMLA Time Be Counted As an Attendance Hit

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    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.

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    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.

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    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.

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    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.

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    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.

  3. #3
    Join Date
    Feb 2008
    Posts
    1,179

    Default 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).

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