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  1. #1
    Join Date
    Feb 2014
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    St. Louis, United States
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    10

    Default Can Your Employer Require You to Use Vacation Time for FMLA

    My question involves labor and employment law for the state of: Missouri

    I like my job, I mostly love my co-workers 2 of my 4 bosses are fairly decent people. Unfortunately, I'm being messed with, taken advantage of and insulted. Some of the things are legal, some are not and some are huge bungles by my employer it almost makes me feel sorry for them.
    I started my job in 8/2012. I had previously worked for the company 8 years ago, although a different division and got great performance reviews and left on good terms. My total seniority is close to 5 years now. In September of 2012 I attended a yearly, mandatory meeting in Florida for 5 days. My co-workers and I are administrative assistants so at the meeting we're basically staff, handing out name badges, agendas, pointing out where the bathrooms are, easy stuff. I really tried to prove myself there. I worked hard, bonded with co-workers, jumped in where I could. I was new and I wanted them to like me. For the next year I worked hard, took on a lot of new projects my 90 day and 6 month reviews were great. No complaints. I did get a new boss, Ray. No complaints from anyone except from Ray to my main boss about a yellow sweater I wore. I never wore it again. Whatever.
    My two year old son was diagnosed with moderate/severe autism in 3/2013. I carried on with work as usual except in May and June I requested to use vacation time to tack an extra hour on my lunch one day a week to meet my mom and son at a hospital for my son's therapy and parent training. No problems at this point everyone at work knew of my son's autism.
    As the time for the five day out of town meeting approached I asked my main boss if I could attend the first three days of the meeting, getting the staff through the busy time and then head home. I told him my son is non verbal and receives therapy from me in the evenings. We can't hire a teenager to watch him and my husband works long and unpredictable hours. My main boss says, that's ok for this year.
    I was never offered any FMLA time and even though I knew I could request it for mandatory overtime I didn't. I didn't want to be a headache. Head down, nose clean make everyone happy is how I roll
    The news of my leaving the meeting early did not sit well with two bosses, Ray and Tina. During my annual review in August 2013 they ripped me to shreds. They criticized my bad attitude at the 2012 meeting. I suppose they expected me to be my usual passive, no arguments self but they were wrong. I wanted examples, I wanted to know when, what, how and where. They had none. Ray didn't even know me then and I didn't even remember him at the meeting. There were about 600 attendees. Tina admitted I did fine at the meeting. Ray then said, you have to leave early this year to give that kid therapy and shook his head and rolled his eyes. My main boss was sitting there eyes bulging, mouth gaping. He had no complaints and at this point in the review probably wasn't sure what to do about the mess unfolding. After Ray said that about my son I gave up. I started crying. Not professional but damn it special needs parenting is hard, there's grief, there's stress, there's fear that on top of this review the fact that we were in a busy restaurant and the fact there was no way I could stab Ray with my fork and get away with it culminated into water works I couldn't stop. I ended up with a meets requirements on that review and a 59 cent raise. Gee, thanks. The rest of the comments on the review were stellar, I deserved an exceeds requirements and a higher raise. I was clearly discriminated against for needing to be home with my son.
    I got over the review, I continued on working as if it never happened maintaining a professional relationship with Ray and Tina. In the meantime my workload has increased significantly. I was working an extra 5-10 plus hours a week in overtime I really didn't want but such is life. I took on another boss bringing number of bosses to the current total of 4. I do things now that probably are within the scope of my duties but they are in addition to my other duties and I'm drowning. I talked to my main boss about hiring another person or at least a pay increase. I did find out a new employee with similar duties, background and education to mine was making close to 20% more than me. A raise is not out of line. He said he would try. OK
    In October I got pneumonia. Sweet. I was out of work for 7 days. I got a chest x-ray a cat scan two doctor's visits some antibiotics and steroids. I called my boss every day checking in and telling him what was going on including diagnosis and treatment. When I returned I brought in a doc's note and requested the time be FMLA. About 3 or so weeks later my boss says they applied the sick leave policy and paid me for two days but took my remaining 5 days of vacation. Nothing was said about my FMLA request. I was worried as I was saving those days for emergencies with my son. I asked what would happen if I needed to take a day for my son and he said he really didn't know but it would show up on my review and that I needed to have my husband and family step up and help. Like they don't already!
    In January I had to take a snow day. I wasn't paid, nothing was said, I made up the 8 hours easily with overtime
    I finally heard about my request for a raise about a week and a half ago. It was denied because my co-workers said I'm too quiet and I don't go to lunch with them. I didn't believe that so I asked them and they said it wasn't true, one was particularly pissed as her and I have a great relationship.
    I went to HR and complained. I can't go to lunch with anyone because my son goes to therapy 4 days a week and at lunch I pick him up and my mom meets me at work and she takes him home until my husband or I get home. The 5th day I run errands at lunch or get the MUCH needed respite at a bookstore, the mall or the tanning bed. Cancer be-damned. I told HR that the VP and president of my division complaining about the not talking enough of mother of a non verbal autistic child was too much of a coincidence for me. She wrote everything down, agreed it was strange said she didn't want to believe it was discrimination but it all made no sense.
    I said the same things to my main boss. I asked that given the situation and the discrimination that he talks to them again about my raise. I said I understand a no for legit reasons or company policy but not for this and that I had better not catch another whiff of discrimination at work again including Ray's comments about my kid needing therapy or his, there's something wrong with you comments. I also said there won't be any lunches as my three year old needs me and lunch is my time.
    On Monday I'm going to request my time off with pneumonia be FMLA. My question is, can they require me to use my vacation time for FMLA (running concurrently) if there is a policy in place to pay employees under a separate sick leave plan. I thought if FMLA time was paid that vacation days didn't have to be used. The sticking point is there is a 5 day unpaid waiting period before the sick leave pay kicks in. Also, what are the repercussions for my employer not telling me FMLA would be denied for pneumonia, which it shouldn't be, and not providing me a written denial with a reason?
    Should I go ahead and file a complaint with EEOC and the Missouri Human Rights for the review debacle and denial of a raise and then them not reviewing the request again after I made my case about lunches and complaining to HR?
    Right now my husband and I are getting ourselves in a great position to be able to go down to one salary and I should be able to quit in the next 6-12 months so I'll go hard with this. I don't care anymore. I like the work, the company is a major employer in my city, looks great on a resume and it's a feat to get hired there but I'm not being treated fairly. It's depressing and all I wanted to do is a good job.

    Thank you for reading. I know it's long but I at least hope a little entertaining

  2. #2
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    Too long. While you still can, go in and edit to include some white space. I'm not even going to try to read a huge block of text like that - my eyes would never forgive me.

  3. #3
    Join Date
    Jan 2006
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    38,867

    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    I tried to read it but had difficulties as well but I did see a couple questions.


    On Monday I'm going to request my time off with pneumonia be FMLA.
    you do not request time off be FMLA time. You request leave. Your employer then determines if it is covered under FMLA and informs you of their stand. If it is covered, the employer is required to provide you of your rights and responsibilities under FMLA and to inform you of any need you need to provide certification for the reason for the leave.



    Also, what are the repercussions for my employer not telling me FMLA would be denied for pneumonia, which it shouldn't be, and not providing me a written denial with a reason?
    how would you know if was not considered FMLA by the employer unless they told you is was not considered FMLA time?



    http://www.dol.gov/whd/fmla/employeeguide.htm



    and a publication linked in that site:


    http://www.dol.gov/whd/fmla/employeeguide.pdf

    I didn't read the discussion of the comments about your son too closely but there is nothing inherently wrong with discussing your son, his issues, and even calling him names if they choose to. Being insensitive or callous is not something the law bothers with.


    Also, what are the repercussions for my employer not telling me FMLA would be denied for pneumonia,
    they don't need to tell you until you request leave as the eligibility changes and the answer today may not be correct for tomorrow or vice versa. Once you apply for leave, or take leave if there is no ability to provide advance notice, the process of determining the eligibility starts.


    I deserved an exceeds requirements and a higher raise.
    I see you have a lot of issues such as this. What you deserve is 100% up to your employer. As long as you were not denied a raise (or it was limited) based on some protected characteristic (illegal discrimination), you either accept what is given or find work elsewhere.

    You do seem to have a personality issue though. YOU do everything right. YOU work harder than anybody else. YOU deserve the world. Sorry but until you have your own business, you can have the opinion such as that, determine whether you actually deserve any of it is up to your employer.

  4. #4
    Join Date
    Sep 2010
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    19,901

    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    To answer the question in the header (I'm not going to read the rest), Yes, the employer can make you use up your paid leave (sick, vacation) rather than the unpaid leave during the FMLA time period.

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

  5. #5
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    Jan 2006
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    38,867

    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    . When I returned I brought in a doc's note and requested the time be FMLA. About 3 or so weeks later my boss says they applied the sick leave policy and paid me for two days but took my remaining 5 days of vacation. Nothing was said about my FMLA request. I was worried as I was saving those days for emergencies with my son.
    fmla has nothing to do with your pay. It is simply a law that protects your employment status under certain conditions. Your pay is up to your employer and their policies. I see nothing wrong with what they did regarding your pay.

  6. #6
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    Federal law expressly gives the employer permission to require that you use any paid leave you may have as a part of your FMLA.

  7. #7
    Join Date
    Feb 2014
    Location
    St. Louis, United States
    Posts
    10

    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    Apologies for the length. I understand they can require you to use vacation for unpaid FMLA however, my employer pays employees during FMLA leave. My question was can they pay you through a sick leave plan AND take vacation days from you? My understanding is they can't do both. What my question was that since the sick leave plan requires a five day waiting period before benefits kick in can they take those days to cover the waiting period? I've heard both yes and no I was wondering if anyone had a clear answer

  8. #8
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    Yes, they can use both. It is 100% legal to make you use vacation time for the period before sick leave kicks in, if that is what the employer's policy says.

    Is that answer quite clear?

  9. #9
    Join Date
    Feb 2014
    Location
    St. Louis, United States
    Posts
    10

    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    Quote Quoting jk
    View Post
    I tried to read it but had difficulties as well but I did see a couple questions.


    you do not request time off be FMLA time. You request leave. Your employer then determines if it is covered under FMLA and informs you of their stand. If it is covered, the employer is required to provide you of your rights and responsibilities under FMLA and to inform you of any need you need to provide certification for the reason for the leave.

    What's the difference if you say leave or FMLA? Considering the issues I went through with one boss previously, I wanted the time protected. My job is actually HR assistant. I know pneumonia qualifies for FMLA so I said FMLA. The employer is responsible for getting the ball rolling no matter how I articulate what I need as long as I give them enough info to make a decision. I did, they ignored it and now the time is not protected and my boss said it will be held against me. I know I did everything right here, I wasn't questioning that. I guess my question would be is it just a small technical goof, willfull interference?



    how would you know if was not considered FMLA by the employer unless they told you is was not considered FMLA time?

    If it were FMLA I'd have papers to be filled out by myself and the doc. My time card would reflect it, etc. it's not hard to figure out


    http://www.dol.gov/whd/fmla/employeeguide.htm



    and a publication linked in that site:


    http://www.dol.gov/whd/fmla/employeeguide.pdf

    I didn't read the discussion of the comments about your son too closely but there is nothing inherently wrong with discussing your son, his issues, and even calling him names if they choose to. Being insensitive or callous is not something the law bothers with.


    they don't need to tell you until you request leave as the eligibility changes and the answer today may not be correct for tomorrow or vice versa. Once you apply for leave, or take leave if there is no ability to provide advance notice, the process of determining the eligibility starts.

    Actually they have 5 days to tell me. If they deny it they have to have a reason, in writing. For example they would have to tell me I haven't been here long enough, less than 50 employees within 75 miles, etc, etc. they did not


    I see you have a lot of issues such as this. What you deserve is 100% up to your employer. As long as you were not denied a raise (or it was limited) based on some protected characteristic (illegal discrimination), you either accept what is given or find work elsewhere.

    While I understand it's long, it covered the illegalities in this situation. The denial of raise because I don't talk (weird but true), can't attend non-work social lunches because I have to pick up my son from therapy and a performance review based on their dislike of a protected activity

    You do seem to have a personality issue though. YOU do everything right. YOU work harder than anybody else. YOU deserve the world. Sorry but until you have your own business, you can have the opinion such as that, determine whether you actually deserve any of it is up to your employer.
    Wow. Not sure where you got that from and you clearly didn't read my post. Fine, I don't care. You don't know me, I don't know you and anyone in the world is perfectly entitled to insult strangers on the internet and hide behind their anonymity. That's what the internet is all about. My only request is that you refrain from assuming you are a psychologist and try to understand that there are real people on the other side of the screen. Entitled is not a word that describes me. If you can't answer the questions, fine. No one cares but attacking me because of that is silly

    - - - Updated - - -

    Quote Quoting jk
    View Post
    fmla has nothing to do with your pay. It is simply a law that protects your employment status under certain conditions. Your pay is up to your employer and their policies. I see nothing wrong with what they did regarding your pay.
    Right. I know that. My concern is protection, not pay. They paid me through a sick leave plan. My question was can they utilize a sick leave plan AND vacation days for pay?

    Substitution of Paid Leave

    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.

    The above is what I was questioning. They can't use a sick leave policy and my vacation for pay. However the sick leave policy doesn't kick in for 5 days. The law doesn't clearly state they can use vacation to make an employee whole but it doesn't say they can't either. I thought in this case the use of vacation had to be mutually agreeable. I was hoping someone could clear that up

  10. #10
    Join Date
    Jun 2006
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    Massachusetts
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    Default Re: Fmla, Stupid Comments During Annual Review and Out of Town Meetings

    Okay. Against my better judgment I went back and read the whole post.

    can they require me to use my vacation time for FMLA (running concurrently) if there is a policy in place to pay employees under a separate sick leave plan
    Yes. They can. As I said above, the law expressly gives them permission to do so.

    I thought if FMLA time was paid that vacation days didn't have to be used. Then you were wrong.

    Also, what are the repercussions for my employer not telling me FMLA would be denied for pneumonia, which it shouldn't be, and not providing me a written denial with a reason? There are none. Just because they paid you for the time (out of sick and vacation) doesn't mean it wasn't applied to FMLA. You might want to read a landmark 2002 Supreme Court case, Ragsdale v. Wolverine.

    Should I go ahead and file a complaint with EEOC and the Missouri Human Rights for the review debacle and denial of a raise and then them not reviewing the request again after I made my case about lunches and complaining to HR? Nothing in that entire long post suggests anything that would interest either the EEOC or the Missouri Human Rights Commission. Neither Federal nor Missouri law requires that you be given any breaks of any kind. Nothing in Federal law or the law of any state requires that you be given a raise. Ever.

    Where in your quote are you seeing that they cannot use both vacation and sick pay? It doesn't say that at all. If you are interpreting interpreting the "or" to mean they may do only one of the two, you are wrong. That is not what it means. And FYI, I do this for a living. I know what I am talking about.

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