need help?

[kpowers]

What is the name of your state (only U.S. law)? Tennessee

I have a question that hopefully I can get help with. I have recently been suspended from work for a week. When i went to work on Monday, I was told to clock out and go home for not showing up on a non scheduled work day for myself. I have emailed the company owner and got a reply back saying that showing up for work that non scheduled day is not really what is at fault, its that I have been absent or tardy for work 20 times in the last six months. I am a single parent of two children. I have to be off work when they are sick or have to go to the doctors and have gotten doctor excuses for being absent. This all comes the week of my daughters scheduled surgery, which I have to be off work to take care of her beccause she is not allowed to go back to school until doctor releases her. I feel discriminated against because I have children that I have to take care of and working a full time job to support them, and now going to lose my job because I have missed too many days to take care of my children.

 

[cbg]

Sorry, but this is not illegal discrimination. Nothing in any Federal or state law requires an employer to overlook excessive absences as long as they are due to the employee's children. Outside of FMLA, a doctor's note holds no force in law.

The sole exception to this would be if the illnesses qualified under FMLA AND if your employer knew or should have known that the illnesses were serious enough to potentially qualify. You mention that your daughter is having surgery. How many of your 20 absences were related to the illness for which she is having that surgery?

 

[sandyclaus]

What is the name of your state (only U.S. law)? Tennessee

I have a question that hopefully I can get help with. I have recently been suspended from work for a week. When i went to work on Monday, I was told to clock out and go home for not showing up on a non scheduled work day for myself. I have emailed the company owner and got a reply back saying that showing up for work that non scheduled day is not really what is at fault, its that I have been absent or tardy for work 20 times in the last six months. I am a single parent of two children. I have to be off work when they are sick or have to go to the doctors and have gotten doctor excuses for being absent. This all comes the week of my daughters scheduled surgery, which I have to be off work to take care of her beccause she is not allowed to go back to school until doctor releases her. I feel discriminated against because I have children that I have to take care of and working a full time job to support them, and now going to lose my job because I have missed too many days to take care of my children.

Having children is not a protected job classification. If you are not able to work, or if you have to take more time off work to care for your children, then you cannot be counted on to perform the duties assigned to you by your employer.

Sounds like you need to figure out some alternate arrangements for child care in the event that your children are sick, or schedule your children's doctor's appointments at a time when it won't interfere with your work hours.

 

[commentator]

The one place where your doctor's excuses will come in really handy is if you are actually terminated. If you are terminated, and you have a doctor's excuse for the last absence before which you were actually terminated, then you file for unemployment insurance, and if you qualify, you are able to be approved, because taking off for illnesses with doctor's excuse is not considered being out of work for a misconduct reason.That said, you certainly can be fired for taking off from work. Have you been at your job for over a year, has your employer got enough employees to qualify to have to give you FMLA? If not, it is a given that you can be fired for being out too much,even with the most excellent of reasons.

It is unclear from your post if you have been able to return to work after this suspension or not. If not, if they keep you off work for more than a week, file for unemployment insurance immediately. Don't wait around at home for several weeks for them to decide what they are going to do. If you are out of work for a whole Sunday through Saturday week, you are eligible to file for unemployment, even if they call it a "suspension." They don't sound too clear about the reason all this has happened. If this suspension is just a firing without the name, file for benefits and make them spell it out why they aren't giving you any hours. Absenteeism, with a doctor's excuse for your child's illness is the reason why you need to tell the system you have been denied work for the week.

 

[kpowers]

reply

My children are in daycare from 645am to 6pm everyday, Monday thru Friday! My hours that I work are different every week, so trying to schedule a doctor appt around work is impossilbe. And im just suspended as of now, I have to call back this coming Monday to see if I still have my job. I have not been at my job for over a year, and they don't employ enough people to have FMLA. Matter of fact, when I found out that my daughter needed surgery, I went back to work and asked for FMLA papers for the doctor to fill out so I wouldnt lose my job, and they had no clue what I was talking about. Thank you all so much for the responses. Much appreciated!

 

[eerelations]

How many employees does your company have within a 75-mile radius? Have you worked there at least a year? If yes, have you worked at least 1250 hours within the last year.

Your answers to these questions will help us determine if you're entitled to FMLA leave.

 

[commentator]

Okay, since FMLA is not an issue, call them first thing Monday morning and see if you are to come back to work. If not, FILE AT ONCE for unemployment benefits. Call the dreadful telephone system and hold the phone, hold the phone, hold the phone until you can talk to a person. Start very early in the morning, about 7:00am, central time. It may take as much as three hours of holding the phone. Sad, but I'm serious. DO NOT file over the internet, as this is not an easy lack of work lay off, and it will take weeks to process. Tell them you are suspended, you believe you have been terminated, and that you wish to file a claim. DO NOT let them talk you out of it or say you should wait on your employer any longer. The employer definitely has the option to call you back to work at any time. When they are contacted by the unemployment system, they may decide to do so. They do not have the luxury of leaving you off work without any income for several weeks while they are thinking of what to do or are punishing you for your frequent absences without your being able to draw unemployment benefits for these weeks if they do not have a definite misconduct reason to fire you. And being off with a sick child with medical excuses is not considered something you could avoid.

Tell them, in as much detail as you can, what your employer told you about the reason you were suspended. Do you have a doctor's excuse for the last occasion you missed work? If so, submit it by fax to the unemployment system after your claim is filed. It is not a bad idea to submit all the excuses you have for absences in the last six months if you still have them. Did you ever receive any formal warnings that your absences were excessive or that you were about to be terminated if you had to be out again? Was there a stated company policy about absences? Mention these things when you file the claim.

When you file the claim, you must not try to restrict your availability for other work, saying you will only accept day shifts because of your child care arrangements, or that you will not be able to make worksearches for a few weeks while your daughter has surgery. Even if you are monetarily eligible for benefit, and are approved to draw them based on the reason you were terminated from your employer, you still have to be able, available and actively making a job search as directed.

I actually saw a mother whose child was dying who was fired from her job, and was filing for benefits so she could draw them after her child's illness was no longer removing her from the labor force. That was brutal. But the cold fact is, being out of work for your children's health issues is not a protected category, and the less good the job is, usually the less provision they make for people who have no help to take their children to the doctor and who are struggling with child care. But it is completely legal for them to fire you. I'm not at all surprised they didn't know about FMLA. So many small businesses plead total ignorance to the most basic of their requirements. But sadly, it sounds as though that's not going to be a possibility for you.

Hopefully, they'll call you back and you can get back to work and your children will stay healthier in the future. You might want to be looking for a better job while you're working at this one, since you have already had problems with them and they may decide to terminate you later if you're absent again. Be sure you get doctor's statements for any absences you can.

 

[cbg]

Let me just say that there is a reason why smaller employers were exempted from FMLA. The fewer employees there are, the greater the impact when one of them is gone. I work for a huge university with thousands of employees, but there are only six of us that do what I do. We have one employee out right now because of her husband's death. The impact of her absence is noticable, with only five employees currently in place. It's the same way when anyone calls in sick or is on vacation. The work load does not change, but there are fewer people to do it. If there are 100 people making sales, one person out doesn't make as much difference. But if there are two people answering phones, and suddenly there is only one, it matters a lot.

I truly hope that things go well for your daughter, and I'm sorry that your employer was unable to work around the absences. But if they're small enough to be exempt from FMLA, and where you are a new employee, I can understand why he did. He has to think of his other employees, too, and the impact on them that it has when you are out so often.

 

[commentator]

Agree, there is a good reason they're exempt, and it does really make a difference when people are out and out and out in a small or specialized worksite. The people who do not have children sometimes feel they're being discriminated against in the workplace because so much allowance is made for people who do have children. I've been asked if all that tolerance for parenting issues was discriminatory toward people without children.

And the particularly horrible example I mentioned was a very large employer, who fired the mother of the dying child after her FMLA expired, not a small employer who didn't have to provide it. It seemed to me from the outside of course that they could have well afforded to give her at least a leave of absence without pay or something. I have always felt very lucky that I had family child care and very understanding employers while raising my children and having major health care issues myself, but I did see lots of evidence that many employers are not understanding and will not work with parenting and child care issues in any way, even to keep good employees.

 

[cbg]

Can't argue with that. My employer (I think you know who it is, commentator ) is very paternal and we have excellent benefits. Though policy is for 3 days bereavement, not only is my co-worker being granted more than that, but we are closing the office tomorrow afternoon so that we can all go to the funeral. Huge as we are, there is a real concern for the individual. But at the same time, I know that we are the exception rather than the rule.