Family Medical Leave.

[BLM1210]

I am from Tennessee and I am currently 20 weeks pregnant. I have had to take the past 2 weeks of work off due to pregnancy complications. I have already filed my papers for Family Medical Leave. My problem is now that I am scheduled to come back to work this upcoming Monday, I feel that I am being treated unfairly. I received a call from my immediate supervisor. She is requesting that I move my shift from 12n-8p To a later shift and possible 3rd shift. A lot of my medical state has to do with not getting enough rest at night and I feel that this change will just aggravate my situation. So I declined stating I would be unable to work those hours. I am also a manager and I feel I will be demoted and lose manager wages of $240 monthly income. She said we will just need to discuss this further in her office and see what she needs to do about it. I have read some of my rights and understand they can not make me do this if I am correct... I am making every attempt to schedule appointments around work hours but I am unable to do so when I go see the specialist that is over an hour away. If someone could please help me understand my rights and what I should do in my situation would be wonderful. Thank you very much

 

[ecmst12]

You can be fired for refusing to change your hours as your boss told you to. That's insubordination.

 

[BLM1210]

Even if part of my complications are caused by lack of sleep? What about being demoted when I am moved to this shift?

I was under the impression that my position and pay are protected and that my absence is not to be counted against me...

 

[ecmst12]

You should not be demoted because of protected leave, but it may not be illegal for them to change your hours to minimize impact on the team. If the new hours will impact your health, you will need medical certification confirming that. You can also contact the US DOL if you feel you are being discriminated against. But flat out refusing a direct order will just get you fired. It's a lot easier to KEEP your job and get them to follow the law then it would be to get reinstated after they fire you, ya know what I mean?

 

[BLM1210]

The point is I don't want to be fired. At the same time I don't want to be forced to do something I know I will fail at. As well as staying up at night affecting my health-which I am having my doctor clarify what he has already written- but in my line of work I would sit on a couch and complete house hold cleaning and watch tv basically while the four clients who live in the home I manage sleep. How can someone stay awake for that? Not me. If I agree to it and dose off then that is considered neglect and I would be brought up on legal charges and lose my job and have to go under state investigation. I don't want to put myself in that situation either.


So I did some more searching and I found this. I just don't know if I am understanding it correctly.

The way I understand it is that if they switch my shift or the location I work in thats ok. As long as the shift isn't from day to night as stated in section E. So they can transfer me to a part time shift during the same hours right?
Also, if they step me out of management during this time they can not take my 1.50 pay from me for not managing the home anymore.
Finally, if they move me from part time to full time they are to continue my pay as is now, as well as benefits are not to be taken away due to being transfered to part time. Please tell me if I am understanding this correctly.

(a) Transfer or reassignment. If an employee needs intermittent
leave or leave on a reduced leave schedule that is foreseeable based on
planned medical treatment for the employee, a family member, or a
covered servicemember, including during a period of recovery from one's
own serious health condition, a serious health condition of a spouse,
parent, son, or daughter, or a serious injury or illness of a covered
servicemember, or if the employer agrees to permit intermittent or
reduced schedule leave for the birth of a child or for placement of a
child for adoption or foster care, the employer may require the
employee to transfer temporarily, during the period that the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. See Sec. 825.601 for special rules applicable to
instructional employees of schools.
(b) Compliance. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced schedule leave.
(c) Equivalent pay and benefits. The alternative position must have
equivalent pay and benefits. An alternative position for these purposes
does not have to have equivalent duties. The employer may increase the
pay and benefits of an existing alternative position, so as to make
them equivalent to the pay and benefits of the employee's regular job.
The employer may also transfer the employee to a part-time job with the
same hourly rate of pay and benefits, provided the employee is not
required to take more leave than is medically necessary. For example,
an employee desiring to take leave in increments of four hours per day
could be transferred to a half-time job, or could remain in the
employee's same job on a part-time schedule, paying the same hourly
rate as the employee's previous job and enjoying the same benefits. The
employer may not eliminate benefits which otherwise would not be
provided to part-time employees; however, an employer may
proportionately reduce benefits such as vacation leave where an
employer's normal practice is to base such benefits on the number of
hours worked.
(d) Employer limitations. An employer may not transfer the employee
to an alternative position in order to discourage the employee from
taking leave or otherwise work a hardship on the employee. For example,
a white collar employee may not be assigned to perform laborer's work;
an employee working the day shift may not be reassigned to the
graveyard shift; an employee working in the headquarters facility may
not be reassigned to a branch a significant distance away from the
employee's normal job location. Any such attempt on the part of the
employer to make such a transfer will be held to be contrary to the
prohibited acts of the FMLA.
(e) Reinstatement of employee. When an employee who is taking leave
intermittently or on a reduced leave schedule and has been transferred
to an alternative position no longer needs to continue on leave and is
able to return to full-time work, the employee must be placed in the
same or equivalent job as the job he or she left when the leave
commenced. An employee may not be required to take more leave than
necessary to address the circumstance that precipitated the need for
leave.

 

[cbg]

Would they be requiring that you change your shift if you had never applied for FMLA and never taken medical leave?

If so, then they can do so now without any restrictions. FMLA only protects you from employment changes that occurred BECAUSE you took or applied for FMLA.

 

[BLM1210]

No, it was stated that this transfer of shifts is because I have medical appointments ect. Like I have stated before I am trying to have appointments to were it doesn't always affect my hours while at work. That is not always possible though.

So my understanding of what I have posted above is correct then? They may switch my shift/job location as long as it is it is the same work hours. Day shift for a day shift. Night shift for a night shift? Also if moved to part time I am to keep my benefits even though not offered to part time employees. As well as no affect on my pay.

 

[ecmst12]

It would be reviewed by the DOL on a case by case basis. What do they want to change your hours TO? And my point is, tread very carefully before out and out refusing to do what you are told by your boss. If you can't work 3rd shift for medical reasons, get your doctor's note FIRST. Work the shift and SEE if you can adjust to it. In the meantime, complain to the DOL, while you continue to work and collect a paycheck, since it can take some time for them to investigate. Once you file the complaint though, you gain another level of legal protection against being fired.

 

[BLM1210]

It would be reviewed by the DOL on a case by case basis. What do they want to change your hours TO? And my point is, tread very carefully before out and out refusing to do what you are told by your boss. If you can't work 3rd shift for medical reasons, get your doctor's note FIRST. Work the shift and SEE if you can adjust to it. In the meantime, complain to the DOL, while you continue to work and collect a paycheck, since it can take some time for them to investigate. Once you file the complaint though, you gain another level of legal protection against being fired.

You are not answering my question. I am asking if I am understanding what I have posted correctly. If it says they can not do it, then I will not agree to something that will put me at risk of committing neglect.I already stated my Dr. is clarifying more then he already has about my health issues and how this would affect me further. I have worked 3rd in the past and could not adjust. Not with out medication to help me sleep during the day-which I can not take during pregnancy. So why would I agree to something that is against what FMLA is supposed to protect me from?

I don't mean this to sound rude.

I just want to know if I am clearly reading this and have the right to refuse based on the information I have given already.

 

[wyett717]

I work in the same field as you do. People working the night shift (midnight - 8am) adjust their sleeping schedules to coincide with their required work hours. Is it not possible for you change your sleep schedule?

From fmlaonline.com:
"When they return from leave, FMLA guidelines require that companies return employees to their former position, assuming they are able to perform the essential functions of that position. If the employee is no longer able to perform his or her previous job, an alternative position with the same benefits, salary, and work hours must be provided to the disabled employee."

Based on your post, they are abiding by the FMLA requirements. It's not always fair, but that doesn't make it illegal.

 

[justalayman]

# ALTERNATIVE POSITION.-- If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1), that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that--

* has equivalent pay and benefits; and
* better accommodates recurring periods of leave than the regular employment position of the employee.

sounds like they are only doing what is allowed by the law.

 

[BLM1210]

I work in the same field as you do. People working the night shift (midnight - 8am) adjust their sleeping schedules to coincide with their required work hours. Is it not possible for you change your sleep schedule?


From fmlaonline.com:
"When they return from leave, FMLA guidelines require that companies return employees to their former position, assuming they are able to perform the essential functions of that position. If the employee is no longer able to perform his or her previous job, an alternative position with the same benefits, salary, and work hours must be provided to the disabled employee."

Based on your post, they are abiding by the FMLA requirements. It's not always fair, but that doesn't make it illegal.

our night shift isn't those hours. I wish. Our shift begins at 740p-920a. That is not the point though. If this is stated as shown in my above post...

"an employee working the day shift may not be reassigned to the
graveyard shift" As well as it is already in my medical documentation given to my employer that the adjustment would aggravated my medical condition due to the adjustment of sleep schedule.

why should I change if this is stated? Everyone keeps repeating the same things before reading the whole post stating some of these facts as well. Seems like nobody is paying attention to what I am pointing out right here and answering if I am understanding this line correctly.

 

[pattytx]

So why don't you just call the federal DOL and get it from the horse's mouth?

 

[ecmst12]

What I said before, and is still the correct answer, is that your case will be examined on an individual basis once you file a complaint with the US DOL. That is the governing body for FMLA and that is who can determine FOR CERTAIN if the law is being violated or not.

 

[LSchmid]

The information the OP is taking from the FMLA regulations state that an employer may NOT change an employee's shift to DISCOURAGE them from using FMLA leave. There is nothing that says an employer cannot move an employee to another shift if it legitimately needs the employee on another shift due to the employee's absences under FMLA.

That being said, this is a slippery slope and something the employer should have fully documented in case of a complaint.