Per Diem Rights

[Anon_88]

New York State

Question: Do per diem employees have the right to refuse shifts?

Background: I was hired as a per diem employee a little over a month ago and was under the impression that I didn't have to accept every shift I was called for, but another employee copped an attitude for leaving after a Case & not staying for an incoming one due to illness, snarkily stating "you know if you're on call you're EXPECTED to be here." (they are a team lead, but not my supervisor)

I have taken the last 2 days off due to the illness and have provided my supervisor a medical note documenting the illness.

The schedule as written has per diems on call for 3 or 4, 24 hour shifts in a row, sometimes more! That is not feasible for any human to work - we need sleep, what happens if we go in tired or ill because "it's expected," and an error occurs... Or worse, an injury?

We also have lives outside of work that need to be managed - doctors appointments, handling day to day life things during business hours...

The only things I have not reported to a case for are appointments (mostly medical, one vehicle repair) - but have showed up to the vast majority of my call-ins.

I know my medical rights, and illnesses are on a need to know basis - does this extend to my supervisor, or just myself and HR? (have an autoimmune issue that causes me to become ill a lot due to low immunity, and some cardio-pulmonary issues. The aforementioned day in question where I left after that one case, the cardio stuff was bothering me and I was extremely worried - went straight to the hospital).

So again, do I have the right to say "no, I'm not coming in" when called for a shift, and what documentation, if any, should I have available for my supervisor?

Thanks.

 

[PayrollHRGuy]

If you are going to use illness as an excuse your employer has every right to ask you to prove it.

There is no NY or Federal law that limits the number of hours you can be scheduled for. Your employer can terminate you for no reason at all, he can certainly terminate you for not coming to work when he wants you there.

 

[Taxing Matters]

So again, do I have the right to say "no, I'm not coming in" when called for a shift, and what documentation, if any, should I have available for my supervisor?

You have the right to say it. The employer has the right to fire you for it unless your request for time off is protected under the federal FMLA or under NY state law and you provide to the employer what is required to take that protected leave.

 

[Anon_88]

You have the right to say it. The employer has the right to fire you for it unless your request for time off is protected under the federal FMLA or under NY state law and you provide to the employer what is required to take that protected leave.

Do you know if I can apply for FMLA this soon, or know where I can find the law because another employer told me I needed 1500 hours to apply and gave me the boot regardless of documentation before I qualified.

It's a chronic illness and I DEFINITELY qualify, it's just a matter of obtaining it. Documentation for the illness is never an issue. It's almost a catch 22 because I'd rather work than be on disability, but employers don't like sick employees.

 

[Taxing Matters]

Do you know if I can apply for FMLA this soon, or know where I can find the law because another employer told me I needed 1500 hours to apply and gave me the boot regardless of documentation before I qualified.

You've only worked for your current employer for a month if I understand your facts correctly. Unfortunately that is not long enough to qualify for FMLA leave, even if your workplace is large enough. The U.S. Department of Labor, which is the agency that administers and enforces the FMLA, states the FMLA eligibility requirements as follows:

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. ​

​

So you have to have been employed there at least a year to be eligible for FMLA leave. With only a month in you don't qualify.