FMLA -Lack of employer response *LONG*

[AngelMyst]

What is the name of your state? Illinois

Wasn't sure of the right place to ask this, hope this is ok.

I work on a 24/7 technical support call center, I had worked for 11 months prior to this position in another area of the company. At the time I was hired my husband was living here, so when asked if I could work any shift it was not a problem. I might mention here at this time we were in the process of immigration paperwork as we married here. In january he had to return home due to a family health crisis and we had to start from scratch on the paperwork. Additionally that left me as an acting single parent again.

These circumstances changed my ability to work any shift. My daughter is 15, has a history of serious depression, one hospital stay for suicide prevention and is additionaly severely ADHD.

I communcated this to my supervisor and reassured them that once my husband was back I would be free to work whatever they offered. Since then, we had a mini shift change where 4 of us were moved from days to evenings. We had been informed that shifts choices went by seniority so I was surprised that time to find out that my previous position with the company didn't count toward that seniority. At this change there were 3 shifts that were 4 10 hour days with 3 off and one that was a 5 day shift 8 hous with 2 off. I ended up with last pick (the way it worked out I would end up able to interact with my daughter only 1 night month) but my supervisor worked with me to put me into a shift similar to the others which although still a hardship allowed more time to try to keep my daughter safe. At that point she assured me we had 2 other crews hired at our other facility and since the seniority crossed between the two, by the next shift change I would be able to obtain something better.

In June they informed us there was going to be a division wide shift change and asked us to tell them what our optimal shift would be. I responded that due to my cirucmstances a day shift would be best so I could properly care for my daughter. During the course of this shift I had often came home to find she hadn't eaten anything, her sleep schedule was messed up because she tried to stay up to see me and she had failed her freshman year of highschool because there was no routine in her evenings to help keep her organized with homework.

Then they changed the seniority rules and although 15 people had been hired in to similar positions to mine since I migrated into that facility those were at the other facility and they were now splitting the available shifts between the 2 facilities. And so again I was at the bottom for shifts. The last 4 of us drew a number out of a hat to see who chose first and I got the last choice. This left me with the worst shift of all of them a 5 day week, 8 hours a day working from 12:00 - 9:00pm with 2 days off (add 1.5 hours either side of that for commute) the 2 days off falling on days her father had he for visition 3 weekends a month. I asked for assistance with this to adjust my shift, but they would not help. Instead they told me to request FMLA and if it was approved they should be able to do so. The shift change was set to go into effect on September 1st.

I submitted my request on August 23 and my doctor faxed in the certification. And followed up after a week to find out the status but they had no answers. On September 12th I asked my supervisor what could I do if my daughter became ill and she said "Oh, I didn't tell you I got an email the FMLA was approved". I had not received any notification until then. I asked her since it was approved do we have any information on the shift adjustment? And she told me she was waiting for an email on it.

My daughter had a breakdown on the 14th and I was off on that day and the next and questioned my supervisor about the shift again and received the same response about the email. I again asked my supervisor on Monday and again received the same response. I left voicemail for my supervisor on tuesday and wednesday this week following up but received no response and didn't see her. According to the FMLA leave code..I've read it beginning to end...I am supposed to work with my employer to impliment a schedule that will work for both of us. I'm trying!

I still have not received any hard copy proof that it was approved and today is the 21st of September, my supervisor has told me it was approved so we need to work this out. I called the unpaid leave department of my company and they verified it has been approved. I'll add here, I have intermittant FMLA approved on my behalf due to asthma. According to HR they added the one I submitted for my daughter onto the one for me which was approved in July.

I keep going to work hoping to hear something, dealing with the incredible frustration about their lack of response and worrying horribly the entire time that something might happen to my daughter as I work the shift they have assigned me. I'm also dealing with anger that 2 times now I have had my seniority in the company negated. My asthma is triggered by stress and I've been experiencing much more frequent attacks than normal due to the stress this is subjecting me to which creates an additional hardship.

So my question is, is the way they are handling this legal? Do I have any recourse on this?

 

[Beth3]

The FMLA does not require your employer to change your work schedule. If the proper medical certification is provided, the FMLA does provide you with leave time for those occasions when you cannot be at work in order to care for your daughter or because you have an asthma attack for up to 12 weeks per calendar year or rolling 12-month period (depending upon how your employer tracks it.)

What you need to do is talk to your supervisor and/or HR and tell them you are seeking a "reasonable accommodation" regarding your work schedule because of your daughter's disabilities. The ADA requires your employer to engage in an interactive process with you to determine if a reasonable accommodation is possible and if it is, they must implement it.

Now what I can't tell you is what a reasonable accommodation would be for your employer in this sitaution. I can tell you that they don't have to bounce someone onto an off-shift to free up a day shift job for you nor do they have to disregard some previously designed shift assignment policy (for example, if they used seniority) in order to give you a more desirable work schedule.

What you need to do is contact HR and go down the ADA path. I can't tell you what the outcome will be though.

 

[AngelMyst]

Thank you for your response. From what I had read they can accomodate a reduced work schedule, and based on that I could work partial shifts with the same results as a shift adjustment.

Due to the nature of my position, it would not be necessary to bounce anyone to accomodate my needs, it's a large support center and adding some additional coverage during the earlier shifts which tends to be when the largest influx of tickets occurs would not be detrimental to them. If I were to work a reduced shift then I would be absent during the evenings which would be no different if they were to adjust the shift.

Both my asthma and my daughters condition have been medically certified, and approved based on what I have been told verbally.

The main focus of my long story is I submitted this on August 23 and it is now September 22 and I am still trying to see what my employer and I can work out which would be reasonable for both sides. Are they meeting their responsibilities in responding to my request by making me wait this long?

 

[Beth3]

They have informed you that your FMLA request for leave has been approved, so I don't see any problem there. A reduced leave schedule under the FMLA does not require your employer to change your work hours. If does, for example, require your employer to let you work a part-time schedule (say 4 hours/day) and apply the balance of the regular work day towards your FMLA entitlement. During that time, you must still be considered a full-time employee (no loss of benefits or seniority, for example.)

The problem with reduced and intermittent leave to care for your daughter is that once the 12 weeks of leave time is up, it's up. You then would have to revert to your customary full work schedule. Personally, I really think you need to go down the ADA path with them to see if a lasting solution is possible.

 

[AngelMyst]

Thank you again. I will look into the ADA.

Once my husband returns home then I will be available to work any shift they require and based on the processing dates for INS I would think the 12 weeks would be sufficient.

I'm sorry to go on and on, I know I've received a verbal confirmation that they have approved the FMLA but from what I have read they are supposed to provide me with a hard copy outlining my responsibilities. I have that for my asthma but I don't know if they have changed anything in adding my daughter. Also I've read that for a reduced work schedule I need to work with my employer to determine what would work for both of us. Based on that although I have been approved, I can't take anything in that respect. I can call in for a day and say it's for FMLA but for steady partial shifts I would think I would be negligent in just choosing without discussion when to leave for the day. It just seems that would be grossly inappropriate and inconsiderate to my employer.

I love my job, and from the responses of my supervisor and other supervisors they are quite pleased with what I bring to the company and my abilities. I don't want to endanger that by acting inappropriately in this issue.

On the other hand based on what I have read they have a responsibility to respond within a smaller time frame than this. It's frustrating because I want to do what is right and just up and deciding on my own what hours to work as a reduced schedule without their input does not seem appropriate. While I am waiting to do this my only option as need be is just calling off stating it's for FMLA which also is not good.

Sorry again to ramble on and on and on about this. It's so frustrating. I will look into the ADA as you have suggested. And again I thank you for your patience and response.

 

[Beth3]

but from what I have read they are supposed to provide me with a hard copy outlining my responsibilities. I'm not sure what you mean. Your employer is required to provide all employees a copy of their rights under the FMLA, which typically is done in the employer's handbook or policy manual. DOL guidelines used to require that the employee be notified in writing that their FMLA request has been approved and while that is still a good idea, recent case law has made that unnecessary.

I agree that it would be unprofessional for you just to come and go as with little or no notice now that reduced schedule FMLA has been approved. I also agree it makes no sense that your employer hasn't taken the time to work out the details with you as it's in their benefit to do so. Why they're not responding to your requests is discuss this is beyond me.

 

[AngelMyst]

Thanks again for you input and suggestions. I do very much appreciate it. I've not known where to turn other than studying and the longer I wait and try to work this out the more stressed I'm becoming and the more my asthma is flairing up and it's just starting to feel so out of control.

And the irony...

I could quit my job and collect unemployment legally because my shift interfere's with my childs safety. I could collect TANF under those circumstances and take a job at mcdonalds to satisfy the welfare to work rules. In both situations depending on public benefits to get by with no problem. You'd think there would be more support for those who are employed and facing challenges like this. It's no wonder so many people are on welfare, it would be a lot less stressful than going through this.