Forced to Take FMLA

[lilsister]

What is the name of your state? NY

Earlier this year, I informed my employer that I have a "disease" that affects my attendance. I had an unsuccessful surgery back in January b/c of this disease. I've used all my sick and personal days and vacation time to date.

I recently requested my status change from full-time to part-time b/c I'm starting a new medical program that might be the solution for this disease. I was told the company attorney said they can't change my status.

My question is can my employer force me to do intermittent FMLA - meaning I can miss work on a per-day basis and still have job protection. My concern is this is a disease that afflicts me every month. There are days I leave early but b/c I'm salaried and exempt, I don't get docked for this time. My employer says with intermittent FMLA, I would get docked for any time I'm not in the office.

I don't worry about termination because this disease is covered under the Americans with Disabilities Act and they have demonstrated in the past that they allow people to leave early or miss days b/c of illness (one girl was pregnant and if she worked a full week during the nine months, I'd be surprised. She was ALWAYS out of the office or leaving early. She was an hourly employee though.)

What recourse do I have if I'm forced to do FMLA?

 

[Beth3]

An employer may attribute absence time (in fact, they are required to do so) to any absences that fall within the definition of a "serious health condition" under the FMLA. Your employer does not have to allow you to change your employment status from full-time to part-time - but if your doctor certifies that you can only work half days, your employer most certainly can attribute the other four hours of your regular work day to your FMLA entitlement.

I don't worry about termination because this disease is covered under the Americans with Disabilities Act and they have demonstrated in the past that they allow people to leave early or miss days b/c of illness (one girl was pregnant and if she worked a full week during the nine months, I'd be surprised. She was ALWAYS out of the office or leaving early. She was an hourly employee though.) Pregnancy does NOT fall under the ADA, nor do routine illnesses. How they treated this pregnant co-worker has nothing to do with your situation. You are entitled to up to 12 weeks of leave (in total) under the FMLA, whether in a rolling 12-month period or calendar year (depending upon how your employer has elected to manage FMLA leaves.) Once that time is used up, they have no statutory obligation to continue your employment.

What recourse do I have if I'm forced to do FMLA? None. You don't get to decide whether your absence time will be attributed to your FMLA entitlement. If the absence time meets the criteria of the FMLA, then it's FMLA.

 

[cbg]

I just want to reiterate what Beth mentioned early in her post. The employer is REQUIRED BY LAW to apply any absences that are covered under the statute, to FMLA. They do not have any choice in this. They would be in violation of the law if they did NOT apply these absences to FMLA. They have no legal obligation to change your status to part time.