Ohio FMLA Update
April 3rd, 2008 Posted by AmeliaUnder the Family and Medical Leave Act (FMLA), employees have the right to as much as 12 weeks of unpaid, job-protected leave yearly to deal with their own “serious medical condition” or that of a member of their immediate families.
Employers, in turn, have long had the right to require that a professional healthcare provider certify the employee’s condition. Employers have had the right to request second and third opinions, provided they pay for them.
Now some of the regulations regarding certification are being streamlined and updated. The new rules permit employers to “request” recertification of an ongoing condition at least every half-year, in connection with an absence.
The U.S. Department of Labor uses the word “request,” but employers may actually deny an FMLA leave if an employee does not reply with that “request.”
A new provision would allow employers to require new medical certifications yearly for an employee’s ongoing health condition. If a worker has migraine headaches, for example, and must take periodic days off through FMLA, yearly recertification may legally be required.
The new rules allow employers to clarify a medical condition with a healthcare professional as long as neither party violates HIPAA medical privacy regulations. Employers may not, however, ask the providers for information not included on the certification. While the WH-380 form has been updated, it remains optional. Healthcare providers need not supply a diagnosis.
Under the old regulations, employers could request recertification if a previous certificate put a time limit on the health condition. The problem is that providers often list conditions as “lifetime” or their duration as “unknown,” effectively preventing employers from seeking recertification. The new rules change that. If Mary suffers from carpal tunnel syndrome requiring 6 weeks’ absence, her employer may seek recertification if she is absent after 6 weeks are up.
Employers, under the old rules, could request recertification after 30 days, but only if the employee was currently absent on FMLA leave. If, for example, employee John takes more than one month off under FMLA his employer could seek recertification, but only if John is still away from work.
More Ohio FMLA Changes
New changes to the FMLA regulations will be published in the National Register after April 11, 2008. At that time they become law. Until April 11, employers may comment on the updates, as may other interested parties.
The U.S. Labor Department recently issued the proposed changes that will affect employers around the U.S. A significant change involves revisions to the so-called “fitness-for-duty” certification process.
One change would permit employers to require that the certificate specifically talk to the matter of an employee’s capability for performing key components of his or her job. If a warehouse worker’s job largely consists of lifting heavy containers, for example, the employer may require certification that the worker is capable once again of lifting heavy objects.
Another is designed to eliminate occasional abuse of the FMLA leave by some employees. It addresses situations in which workers take intermittent, short-term FMLA leave. The update would allow employers to require a “fitness-for-duty” certificate each time the employee wishes to return to the job, provided there is a valid safety concern.
If truck driver Carl, for example, suffers from migraine headaches that interfere with his vision, his employer may require a certificate each time Carl returns. Having a driver with impaired vision would be a valid safety concern. However, if an employee is pregnant and suffers intermittently from serious morning sickness requiring her to take FMLA leave, a certificate could not be requested because there is no valid safety concern involved.
FMLA regulations currently allow employers to require certificates from a healthcare professional showing they are capable of returning to work. The policy, as with other policies, must be applied consistently in similar situations. All employees taking FMLA leave for a “serious health condition” could be required to provide a certificate when they wish to return. But the manager may also choose not to require such a certificate from someone returning after caring for a newly adopted child.
This policy and all policies must adhere to Title VII of the Civil Rights Act. Title VII prohibits workplace discrimination based on religion, national origin, gender, color, or race.
Last 10 posts by Amelia
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[...] “Ohio FMLA Update” on the Labor Law Center Blog- Provides some great information on what FMLA is, for those who are unaware, as well as some updates on recent changes to the act. [...]
Posted by: allen artis
i am trying to find out if there is an FMLA that covers me. i don;t want off work but i drive a fork truck with a bad back my doctors have ask my work if they would move me to a different job that wont hurt my back so i don;t have to leave work the company said they will if i can fine a f.m.l. a or something like that they will is there anything i can show them allen
Posted by: Amelia
Hi allen! The situation that you describe is not covered by FMLA. The federal Family and Medical Leave Act only provides unpaid leave — it does not have an provision for an employee to be assigned to another job.
Whether you are covered by a law or not depends upon the reason for your “bad back”. If it is a permanent disability, then you would be covered under ADA, the Americans with Disabilities Act. Under ADA, an employer must make reasonable accommodations for an employee with a disability. Reassigning a portion of your work duties would be a reasonable accommodation in many cases. In some cases, if the employer has another position open, that you are qualified to fill, they would need to assign you to it as a reasonable accommodation.
However, if your condition is temporary, such as a pulled muscle, it is not covered under ADA. You could take time off for doctor’s appointments under FMLA, but the employer would not be obligated to reassign you.
If you think you may have a disability, and the employer does not cooperate, contact the EEOC at http://www.eeoc.gov. HTH, and thanks for reading the blogs!~ Amelia
Posted by: diane
do fmla laws cover domestic partners?
me and the guy i amwith have been together 16 years
Posted by: Amelia
Hi diane! No, the federal FMLA does not cover a domestic partner. A few states like Hawaii have state family leave laws that cover domestic partners, but Ohio does not.
In Canada and some other countries, domestic pertnerships are legally recognized. In the U.S., they are not. Because you are not married, from a legal standpoint this person is a roommate or a friend, and is not entitled to any of the benefits that a spouse would have. (Which is one reason why many people get married, even if they would prefer not to.) A few companies offer benefits for employees in domestic partnerships, but there is no law requiring them to do so. If you got married tomorrow, FMLA would apply and you could begin taking it to care for your spouse. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Rene
Message
We have an employee abusing her fmla. She has it to take care of her husband intermittently. Can we require her to bring a note in every time she comes back?
Posted by: Amelia
Hi Rene! This is a tough problem that many employers face. Unfortunately, no, for many conditions you cannot require a new doctor’s note each time the employee is absent to care for her husband. You can require that the husband’s doctor certify that he geniunely has a serious health condition, and you can require re-certification every 6 months. In some cases, you can require re-certification more often. Example: If the original certification is for 90 days, you can require re-certification after that period ends. The link below is to the form that the U.S. Department of Labor recommends (but does not require) for such certification. The doctor can specify why leave is needed, how often leave is needed and the expected duration. If your employee is taking leave in excess of that amount, you can request re-certification.
You can attach the employee’s attendance record to the re-certification form, and ask the doctor whether the spouse’s condition would warrent that much time off of work. Under the new 2009 regulations, however, the employee’s supervisor CANNOT call the doctor or doctor’s office and argue about the diagnosis or need for FMLA.
Employees are permitted to take FMLA to care for a spouse with a serious health condition. The FMLA may be to accompany the patient to doctor’s appointments, to care for the patient or to supply emotional and psychological support for the patient. Employees are entitled to take time off for many conditions, even if the spouse does not have a doctor’s appointment that day or that week. So it is going to be difficult for you to prove that the employee is abusing her FMLA leave. If she is at the grocery store shopping, she can always contend that she was buying supplies needed for her husband — and you really cannot prove differently. (If she is at the nail salon getting a pedicure during normal work hours…that is probably not legitimately FMLA leave.)
If the employee specifically states that she will be taking her husband to the doctor, then you could request verification of that, perhaps in the form of a reciept from the doctor’s office or a note from the doctor.
If you believe that the spouse has no serious health condition, you can require a second and even a third medical opinion — but you must pay for those opinions.
You can require that the employee follow your usual reporting procedures for any foreseeable FMLA absence, and of course you should track every hour of FMLA to make sure she does not exceed the limit. But it is very, very difficult to prove FMLA abuse and can be a minefield for the employer. If you decide to pursue this, we would suggest you hire an attorney specializing in employment law. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Tanya
I have been very ill over the last 11 weeks, My husband has had three different FLMA request. They have all been approved. The final one is in effect now. He was approved for one full week of care and then intermittent care after that. He has requested a day off and they told him they need documentation? What? not sure of what. Are they allowed to do that? I am unable to drive or fully care for myself at this time, that is what the intermittent care is for. The FMLA has already been approved can they deny requested time off?
Posted by: Amelia
Hi Tanya! That depends. Usually when an employee is granted intermittent FMLA for a spouse’s serious health condition, it is to take the spouse to doctor’s appointments, etc. Intermittent FMLA cannot be used just because the employee wants a day off (even if they deserve a break!) Nor can it be used for childcare or to run errands that the spouse would normally handle. It appears that your husband has been granted this type of intermittent FMLA leave. The employer is looking for confirmation that he is genuinely using the time for your medical appointment. So yes, the employer can deny requested time off if they believe it is not genuinely FMLA.
However, sometimes FMLA for a spouse’s serious health condition is simply to care for the spouse, whether that care is physical or psychological. If that is the case, your husband may be entitled to the time off. The determining factor would be how the doctor completed the certification for intermittent FMLA.HTH, and thanks for reading the blogs!~ Amelia
Posted by: Katie Mccauley
Message
I am pregnant for the second time while working at the same company as the first pregnancy. I have been with this company for over four years. The first time I was pregnant I worked up to nine months pregnant on light duty because of the doctors orders which my company did accommodate. Now they are saying that they cannot accommodate me on light duty again so they are telling me when my doctor writes me a note for light duty that I have to go on short term disabilty. Now, the problem is that they are saying I might not actually get paid while on disability because I did not make my insurance payments the last time I was on disability. However, my company policy for short term and long term is that it is completely company paid. Also I never authorized any stop payment for anything…ever. By the way I am only around 5 weeks pregnant. They are also telling me that my job is protected by FMLA and that I can come back after the baby is born because my FMLA/Maternity leave does not kick in until I come off of disability, which will be when the baby is born. I asked why it mattered that I did not pay my insurance (medical/dental) the last time I was on disability when disabilty is company paid and a completely separate benefit. They told me that it was because the disabilty was tied into my insurance because the same company is assosiated with both. I need to know what to do I am completely confused and dont want to get screwed I am a single mom about to have two children in diapers. I have not even been to the doctor yet I am scheduled to go tomorrow Wednesday November 4th. I was already told that I will have to go on disabilty when I get a note from the doctor and I was also told that somebody is to start work in my place as of Monday November 9th.
Posted by: Amelia
Hi Katie! There are a number of issues here, so we’ll go through them for you one by one.
First of all, the employer can change company policy at any time, so the policies that applied to your first pregnancy don’t necessarily apply to your second pregnancy. In this case, it appears that the employer no longer offers light duty to pregnant employees. That is their right. There is no federal or Ohio law that requires an employer to make reasonable accommodations for a temporary disability like pregnancy. (If you had a permanent disability like blindness, the employer would be required to make reasonable accommodations under ADA.)
Some companies offer free short term disability insurance to employees who have for medical and dental coverage. This seems to be the case with your employer. This is a generous policy. There is no law that the employer has to offer this benefit to employees who do not have medical and dental coverage. Usually, an employee on short term disability must continue to pay his or her medical and dental insurance premiums, to continue coverage. If the employee is no longer being paid, the most common way to do this is for the employee to send a check for insurance to the employer every month, or every payperiod. If the employee does not pay these premiums, their medical and dental insurance can be canceled. It appears that this is what happened in your case. (And we would urge you to check that you do have medical coverage now.)
So at this point it looks like your time off will be unpaid — which is not unusual. The majority of American women only have unpaid leave for maternity leave.
The employer is actually being generous by holding your job for you. Under federal law, they could begin your FMLA the first day you have to go on light duty. If you were away from work one day more than 12 weeks, the employer could terminate you. Apparently you have been told they will not do that. They will not start your FMLA until you are physically able to return to work. Again, this is very unusual and you should double-check that this is what they meant — and if possible, ask them to put that in writing.
It is 100% lawful and even wise for the employer to train someone else to take over your duties. They can hire additional employees at any time they like. However, if the employer lays you off (while you still have your doctor’s permission to work) because you are pregnant, that is illegal discrimination based on pregnancy. If you return to work when your 12 weeks of FMLA are up, and they refuse to put you back to work, that would be a violation of your FMLA rights. But if you are off even one day longer than the 12 weeks, you can lawfully be terminated.
Since you are a single mom, we will also say that the children’s father should be paying child support, and supporting you financially during your time off. Your children deserve a secure life, and you are not going to be able to provide that on your wages alone. Please feel free to post any additional questions that you might have. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Katie
Thank for answering my questions Amelia. I did check and I do still have medical and dental coverage and have had it this entire time(from when I went on leave my first pregnancy till today). The only thing is when I went on leave my first pregnancy the deductions did not come out of my disability checks (FICA did but that was it). I was never informed of where or when or how much was to be paid and to whom I was to send any payments to. Like I said though my insurance never cancelled and the deductions continued to come out of each and ever paycheck before I went on leave and after I came back. I also checked company policy and it is the same, short term and long term disability are completely paid for by the company. Does this mean I will be paid disability? Also if the doctor does not put me on light duty yet can they still make me go on leave since they already hired somebody to take my place?
Posted by: Amelia
Hi again Katie! The bottom line is, when an employer provides a benefit, the employer makes up the rules (company policies) for that benefit. The employer and the insurance company can set whatever limits they like on providing short term disability insurance to employees, since the employer is providing this benefit free of charge. Apparently you have already been told by someone at the company that you may not qualify for short term disability payments when you go on leave. Nothing we say is going to change that. (You can press the HR department for a definitive answer one way or the other, but be very friendly, tactful and non-confrontational when you do so. The last thing you want to do right now is make the employer angry.)
The good news is, the employer cannot force you to go on FMLA or maternity leave while you are physically able to work. When you go on leave is up to you, and your doctor. (Depending upon your job duties, the employer may require that you have a doctor’s release to continue working. Any employer can request this during the later months of the pregnancy, and the employer can request it earlier if they have reason to believe it may not be safe for you to work.) But as long as you have your doctor’s written permission to work, your employer cannot force you to take time off. Doing so is illegal discrimination based on pregnancy, under federal law. Even if they changed your hours to part-time due to your pregnancy, that would be illegal discrimination. (If that happens, file a complaint with the EEOC at http://www.eeoc.gov.)
Because your employer has assured you that you will have a job to come back to, we see no reason to be unduly worried. It appears they are simply being proactive by hiring someone in case you need to go on leave soon. Again, stay in touch and let us know if you have any more questions. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Katie
Thanks again Amelia I have one last question though. What would be considered “in writing”? Would an email from the HR lady or department stating that they are going to give me my job back be considered “in writing” and would that be legally binding?
Posted by: Amelia
Hi Katie! No problem — feel free to post as many questions as you like.
Yes, an email counts as being “in writing.” You should print out a copy of the email that shows the message and the date, and keep it at home. It at least indicates that the employer is stating that your FMLA does not begin until your short term disability ends, which is an unusual policy.
Is this binding? Well…even if the employer signed a contract in blood, it might not be enforcable in court. If conditions changed, the employer could change their mind. For example, if the company went out of business or reorganized, they could argue that it changed the situation. We don’t want to scare you, but there is almost never an ironclad guarantee, where jobs are concerned. However, putting this in an email indicates that the employer has honorable intentions — which is an excellent sign. (And we give them kudos for warning you that you might not qualify for short term disability benefits ahead of time.) HTH!~ Amelia
Posted by: Katie
Thanks Amelia
Posted by: Amelia
Hi Katie! You are very welcome.
If there is a written copy of the company policy regarding short term disability benefits, and after reading it you feel you should be covered, you may want to see if there is a way to appeal that decision. But again, you want to be very tactful in this situation, because it appears the employer is already providing you with more benefits than they legally have to. Please know that we are here to answer your HR questions anytime!~ Amelia
Posted by: Katie
Hi Amelia its Katie again. I had some questions about FMLA awhile ago and thanks for helping me with that. Now I was just wondering about unemployment. If I go on disability for being pregnant and my 12 weeks of FMLA time are up before I can come back and the company lets me go will I be able to collect unemployment or be eligible for it?
Posted by: Amelia
Hi Katie! You will not qualify for unemployment while you are disabled by pregnancy or childbirth. But once the doctor releases you to return to work, you will be able to file for unemployment. You should receive benefits (assuming that you are otherwise qualified.)
Generally when an employee is fired for a reason the employee has control over, like tardiness or poor performance, the employee does not qualify for unemployment. But when an employee is fired for a reason that she has no control over — like absences related to a pregnancy disability — she does qualify for unemployment when she is healthy again. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Gisela
I have chronic sinusitus and IBS and occasionally am affected by this at work. In a year and a half of being at my job I have NEVER called in sick…but have occasionally requested to leave slightly early because I wasn’t feeling well, Well about two weeks ago (I work in Florida) I left about 1 1/2 hours early from work because of problems with my IBS and this week I had problems with my sinus…three days straight I came to work with unbearable sinus pain and stayed but the third day I requested to leave early (only was able to leave 1 1/2 early). My boss asked me to go see a doctor and get a doctor’s note. Can she require this of me even though she knows of my ailments already and for the short amount of time that I had left?
Posted by: Amelia
Hi Gisela! There are 3 separate issues here: ADA, FMLA and company policy.
Under ADA, the Americans with Disabilities Act, an employee with a permanent disability that impairs his or her basic functions like walking, talking, reading, etc. is entitled to a reasonable accommodation. IBS often qualifies as a disability under ADA. Since you suffer from this chronic disease, it might make sense for you to request occasional unpaid time off as a reasonable accommodation under ADA. The employer has the right to require that your doctor certify your disability, but then you should be able to take time off (within reason) when you need it.
Sinusitus does not qualify under the EEOC definition of disability. However, it may qualify as a serious health condition for FMLA. The federal Family and Medical Leave Act permits employees to take up to 12 weeks of unpaid leave for a serious health condition. FMLA may be intermittent. This law applies only to employers with 50 workers within 75 miles. You should ask the employer about FMLA. Your doctor would have to certify your serious health condition, but again, you would be able to take unpaid time off when you need it, up to 12 weeks per year.
Any absence that is not covered by ADA or FMLA is subject to company policy. The employer can impose whatever rules they like, such as counting a partial day absence as “unexcused” unless the employee presents a doctor’s note. You are under no obligation to share your diagnosis with the employer, however, if you want to be excused from work, you need to provide a doctor’s note that you were ill. It is unusual for an employer to require a doctor’s note for a few hours absence, but not illegal. (It may be that since you had been ill for 3 days, the employer was genuinely concerned about you.) An employee who has an unexcused absence, even a few hours, can be disciplined or terminated. HTH, and thanks for reading the blogs!~ Amelia
Posted by: SIS
My employer has take over 30 days to approve or disaprove my FMLA. I requested my supervisor to check on it. He called Human Resources and that day he got a letter from Human Resources saying my doctor didn’t put the number of doctor visit estimated per the duration of the FMLA. He did put that it was undetermined and no one can tell the future on how many visits my daughter will need for her serious health condition. They wanted a number and kicked it back to me only when I requested information on approval. Since then I have got the information for them and turned it in. How long will it take to approve this. I was told they should of had it approved or disapproved in five working day. Is this correct because they now have seven days before the end of the month, before I fill out my time.
Posted by: Amelia
Hi SIS! Yes, you are correct. The employer is in the wrong here. Under the current FMLA regulations, which were implemented in 2009, the empoyer had 5 days to notify you of your rights under FMLA. You had two weeks to return the papers. They then had 5 business days to get back to you with a determination. If they requested more info, you had an additional 7 calendar days to supply it. Once they had it, they had an additional 5 days to inform you of the determination. The employer can take longer to approve FMLA in unusual circumstances, but cannot take longer for notification.
If they do not approve the FMLA, you should file a complaint with the US Department of Labor at http://www.dol.gov. HTH, and thanks for reading the blogs!~ Amelia
Posted by: John
My wife just passed away and I was wondering if FMLA covers time after her death to take care of the arrangements and personal matters dealing with the family and house. Your advice would be greatly appreciated ~John
Posted by: Amelia
Hi John! First, our sympathy on the loss of your wife. Unfortunately, no, FMLA does not cover leave after the death of a spouse or other family member. FMLA permits an employee to take leave when a spouse has a serious health condition, but not after the death. (There is an exception if the spouse was on active military duty at the time of death.)
An employee can take FMLA for a serious health condition, and depression resulting from grief can be a serious health condition. However, FMLA does not allow leave for handling financial or family issues for non-military families. Some employers have an informal policy of extending FMLA under these circumstances, but there is no law that they must. Some employers offer bereavement leave, but again it is not legally required. HTH, and thanks for reading the blogs!~ Amelia
Posted by: crystal b
Wow. first let me say how happy i am to find someone so knowlegdable in FMLA. I was surprised to come across such a wealth of information from one person. well here is my question if you’d kindly answer
i suffer from severe migraines to the point of vomiting. they began after my daughter’s birth about 4 months ago. i was seen in the ER a few times and referred to a neurologist for them (same neuro that seen me in the ER). the diagnoses in the ER was severe migraines. I made an appointment with them but my insurance has since lapsed so i’m in between coverage at the moment and not able to see the dr. The migraines have affected my work attendance frequently here lately and i’m worried about my position at my job being in jeopardy because of missing work. I understand that i may have to have a dr’s certification of my medical condition. with that being said….i’m not able to see a dr at the moment due to no coverage. any advisc on how to get the certification??? if the neurologist that seen me in the ER never seen me in his office would he be able to certify that or would i have to pay fully for a whole office visit? any advice would be helpful! thanks for you time.
Posted by: Amelia
Hi crystal! We are happy to help. This is a tough issue, but we have a few suggestions. You definitely want to take care of this, because you could lose your job for taking too much time off work unless you are covered by FMLA or ADA. First, are you sure you will qualify for FMLA??? Most of the time, when a woman has a baby, she uses most or all of her annual 12 weeks of FMLA for pregnancy, childbirth and baby bonding. Remember that any time you took off for prenatal appointments as well as birth and baby bonding count towards your 12 weeks. It’s not 12 weeks for childbirth plus 12 weeks for a serious health condition, it’s 12 weeks total in a 12-month period.
If you do still qualify for more FMLA, some employers do not require certification, especially if they already have a doctor’s note. If your employer does require certification, it is possible that the neurologist you have already seen will fill out the certification form for you. Usually, you can just fax the form to him. You may try faxing it to the hospital, since that is where you saw him. Or, you can call his office and see if he will fill it out there. Unfortunately, you only have 15 days to do this. If it takes longer, the employer can deny your FMLA and fire you.
If that doesn’t work, you may have to bite the bullet and pay for an office visit. It will be a lot cheaper than losing your job. Some doctors will give you a discount if you ask in advance and pay cash. If you are going to try this route, call each neurologist in your area and ask what the price will be for an office visit if you are uninsured. (You could also see a family doctor or primary care doctor, just to get the certification complete. They might charge less for an office visit. Obviously you will want to see a neurologist when you can, to take care of this.)
If that is absolutely out of the question, you may qualify for medicaid, a program to provide heathcare to low-income workers. Or, there may be a free or low-cost clinic in your area that provides services. Dial 211 from any landline phone (not cell phone) for a directory of services in your area. You will want to locate the doctor before requesting FMLA, because it usually takes the doc the full two weeks to complete the FMLA forms.
Even if you do not qualify for FMLA, migraines are a disability under ADA, the Americans with Disabilities Act. An employer has to make reasonable accommodations for an employee with a disability. Often, unpaid time off work is a reasonable accommodation. So you may be entitled to time off under ADA, even if you have already used all your FMLA. However, oftentimes the employer will require proof from a doctor that you have a disability, so you’ll still need to find a way to get that. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Chris
I have several serious health conditions, but cannot figure out what I am entitled to under the law.
1) I have IBS, which occasionally interferes with my work schedule. I occasionally am incapacitated and need to come into work a bit late, and even more rarely, need to leave early if I cannot even breathe or stand up straight due to pain.
2) I also have hypothyroidism and am on medication for it. However, unless I take the medication absolutely consistently (which means literally within a half hour of a time each day, often needing to struggle to wake up and take my medicine before falling back asleep for a half hour or so before I am not so sluggish), I also sometimes cannot willpower through the sluggishness to get up and ready in time.
3) I also have issues with medication side effects that make it hard to wake up sometimes, due to unpredictable biological processing of the meds, even if I take them at the same time each night.
4) I struggle with PTSD, depression, anxiety, and have been battling and trying to recover from anorexia for almost 20 years.
5) I have issues with vasovagal syncope, and also struggle with postural hypotension.
6) My only requests to my boss are to excuse me if I am a little bit late in the morning, anywhere from 15 minutes to an hour or two. I make sure to call in to inform of lateness. Occasionally, due to symptoms, I cannot call until shortly after 9 am. I realize this is inconvenient, but I cannot help it sometimes.
7) I also ask to be able to go to my dr. appts, which I try to take during my lunch hour, but sometimes run 5 or 10 minutes over.
#8 Right now, I am in an evening intensive treatment program that requires me to leave 3 times a week a 1/2 hour early. On these days, I do not take lunch, or I take a half hour lunch so i can leave 1/2 hour early.
9) Occasionally I have dr. appts at other times a few times a month. I try to schedule them during lunch hours as much as I can, or as early in the morning or as late as possible. My boss is not accepting or being reasonable. I am being harassed, dismissed professionally (doesn’t take me seriously, shows his frustration, acts rudely to me).
10) I am going through HR, but they said that absence (even a half hour here and there) can be turned into a performance issue, even though I excel at my job and stay late at work more often than not, just to work on things that I feel I need to. My boss says that staying late is unacceptable and does not count. I am salaried, not hourly, and have been here for more than 7 years.
I am attempting to go through our HR disability to have this considered a disability. Am I completely crazy for this? Are all these conditions not considered disability and what else can I offer other than making sure that I stay late on other days or work through lunches if I need to?
Posted by: Amelia
Hi Chris! There are so many items in your post that we have numbered them for quick reference.
The key concepts to understand here are the FMLA or the federal Family and Medical Leave Act, and ADA or the Americans with Disabilities Act.
The federal FMLA applies to employers with 50 or more workers. Under the FMLA, an employee with a serious health condition is entitled to up to 12 weeks of unpaid, job-protected leave in a 12-month period. FMLA can be used for an entire day when the employee is physically unable to work, or intermittently for doctor’s appointments and medical treatment.
Many of your conditions may meet the FMLA definition of a serious health condition. To qualify as a serious health condition, usually the patient must require surgery, or be hospitalized, or be incapacitated for 3 days or more, or require ongoing treatment with multiple visits to a healthcare provider. Your conditions would seem to fit that last requirement. However, leave under FMLA for all reasons combined is still limited to 12 weeks total per year. You should ask HR for FMLA papers. The employer will require that each condition be certified by a doctor for FMLA, although you can keep the diagnosis confidential if you like.
The Americans with Disabilities Act or ADA requires an employer to make reasonable accommodations for an employee with a permanent disability. Many serious health conditions are not disabilities. In order to be considered a disability, a condition must limit a major life activity, such as walking, talking, hearing, seeing or learning. Someone who is blind, deaf or only has one leg has disability. A condition that interferes with a major body system may also be a disability. It is possible that your IBS or hypothyroidism may qualfy as a disability, but it is far from certain.
There is no cumulative effect of medical problems that constitute a disability. In other words, an employee can have 5 different serious health conditions, but if none of them individually meet the test for a disability, the person does not have a disability.
In some cases, time off, a permanently altered work schedule and/or time off for doctors’ appointments would be reasonable accommodations under ADA (after you established that you had a disability.) However, be aware that time off under ADA and FMLA is unpaid, even for an exempt employee. Your weekly salary could be prorated based on the number of hours worked each week.
To address your specific issues:
1) IBS is probably a serious health condition and you could use FMLA for this time off. It is not clear whether your IBS is severe enough to qualify as a disability.
2) Hypothyroidism is usually a serious health condition and may be a disability. However, you might also want to change doctors. The current thinking is that patients should be medicated so that they can function normally, not just so that their blood work meets the minimum level acceptable. If you are too tired to get out of bed and go to work, that is a problem.
3) This is probably not a serious health condition or a disability.
4) These are probably serious health conditions but may not meet the test for a disability under ADA.
5) Sorry, we are not familiar with these conditions.
6) and 7) Most employers would discipline or terminate an employee with this tardiness record, who was not on FMLA or ADA. Unless you are taking time off under one of those laws, the reason for your frequent tardiness or absence is irrelevant. You must be treated like any other employee who misses so much work.
#8 There is no law that requires the employer to permit an employee who is not on ADA or FMLA to leave work early, even if the employee works through her lunch hour or works late on other days.
9) How would you treat an employee who did not have any health problems, who had your attendance record? From your boss’s point of view, unless you are on FMLA or ADA, the reason for your frequent absences becomes irrelevant. An employee whose attendance is spotty (for whatever reason) is not doing a good job.
10) HR is right. When you are not at work, you are not doing a good job. Excellent performance at other times does not compensate for non-attendance. The employer has the right to set minimum work hours and attendance standards for an exempt employee. You can be disciplied or terminated for not meeting those expectations. Some employers basically let an exempt employee come and go as she pleases, as long as the job gets done. The majority of employers do not. They expect regular attendance at clearly specified times.
You should apply for FMLA, and investigate whether you have a disability under ADA. If neither of those two apply, and your conditions make you physically unable to perform to the employer’s satisfaction, you can be terminated. Try to address your health issues to see if you can improve your attendance. If that is impossible, you may want to investigate a part-time job. HTH, and thanks for reading the blogs!~ Amelia