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  • Coercive FMLA? Need help!

    Hi,
    2 yrs ago my girlfriend had surgery to remove one vertebra and fuse two others together. Following the surgery, the doctor (1 of 3)overseeing her surgery and treatment declared her to have a permanent disability (I don't know the criteria used). As a condition of her disability, the doctor requested that she work 2 days (full 8 hours) from home and the other 3 days (full 8hrs) in the office. The company accommodated this request with out hesitation. Her current job/work was the same thing she did before the surgery and what she does from home is the same thing she does in the office (data entry, electronic filing, online background checks, contract verification, etc). She has not missed any time from since returning from her surgery two years ago. The disability has not affected her ability to do the job and her she is an exceptional performer.
    A new HR staff has come in and is telling her that the two days she is working from home (Tuesdays and Thursdays...for which she is getting paid) are considered time away from the office and are therefore subject to FMLA approval. They submitted a leave request on her behalf without her knowledge which was rejected due to insufficient information. The reason for which it was submitted was limited ability to do the job in the workplace (not to do the job. I read the FMLA "law" this weekend and I don't recall seeing workplace specific ability listed in there. Just whether or not she can do the job).

    -She has not missed 1 day of work due to her medical condition.
    -She has not requested leave.
    -She is working and getting paid for 40hrs per week (can and is tracked).
    -Her job requires lots of emailing and phone contact so emails and phone records prove her availability during the two days of telecommuting.
    -No degradation in work performance. (In fact, she has an INCREASED workload)
    -No hardships imposed on the company.

    -Is this an FMLA issue?
    -Or is it an ADA issue?
    -Can they use the FMLA denial as a way of circumventing the ADA guidelines and force her to come in the two days a week?
    -The FMLA Designation notice said her certification was incomplete. She never submitted one because she's not requesting leave! Then where did it come from if not her health care provider? They can't use their own OR make their own determination, right?

    Thank you in advance for any information you can provide.

  • #2
    This is not an FMLA issue. She is not missing any hours. This HR person doesn't know what she's talking about.

    It could be an ADA issue, and "reasonable" accommodation is based on what the employer deems reasonable. It's possible that the company has decided that it is no longer "reasonable" for her to be working from home. Although I would think that such a determination would not be defensible unless the company has some good business reasons that she can't work from home any longer. There is nothing in the law which says that, once a particular accommodation has been granted, that particular accommodation has to continue in perpetuity.

    What "FMLA denial"? I don't understand where there is an FMLA request that has been denied; in fact, it is the opposite, FMLA is being proposed when it is not applicable.

    FMLA and the ADA are two separate laws that have two separate definition; in fact, the FMLA refers to a "serious medical condition", whereas the ADA refers to a "disability" that "affects a major life activity".
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      FMLA denial

      Pattymd,
      Thank you for your response. Yes, she was denied FMLA that she personally never submitted or requested (I have the actual denial from DOL). It was submitted by her employer without her knowledge or consultation.
      They apparently also submitted a certification on her behalf and the FMLA law (I read the whole thing this weekend) CLEARLY STATES that the certification must come from the employee or the employees health care provider. So not only are they trying to make it an FMLA issue when it clearly isn't, they may have broken the law in trying to force the issue?

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      • #4
        The employer is under an obligation to designate time off from work as FMLA if the situation qualifies - not at the employee's request, necessarily. But I think someone new to HR may not understand exactly what's going on with your girlfriend.

        I would never in a million years have considered this schedule FMLA, but rather an accommodation under ADA. I would approach them to ask them what they are trying to certify or what they need from her. And that can start the conversation of what exactly they're trying to accomplish by designating her time (incorrectly!) as FMLA. If I had to guess at a less-than-decent purpose, I would say they're trying to make the work-from-home schedule disappear. But it could be as simple as they don't understand she's actually working at home for those 2 days. Sometimes HR people don't see payroll figures, and if they don't see people in the office, they think they're not working. As a newbie who might not be aware, I'd be scrambling to send home FMLA paperwork, too.

        As a suggestion, if it becomes necessary - if her doctor can certify today that this particular accommodation is still needed, then for ADA purposes, her employer has willingly accommodated this arrangement for 2 years, and it would be very difficult to prove that this schedule is suddenly a hardship for her employer.

        Still, if it is suddenly a hardship, perhaps the new HR team would be willing to outline exactly why it's a problem and work together with her to create a good solution.

        Good luck.

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        • #5
          The DOL does not approve FMLA requests; the employer does.
          I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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          • #6
            FMLA Denial

            Thank you Pattymd. I didn't realize that. I guess they just use a DOL form to do the denial then?

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            • #7
              Could be. If I were her, I would ask why they are invoking FMLA when she is not missing any hours.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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              • #8
                Originally posted by Pattymd
                Perhaps one of the moderators could move J.J.Brown's response to the other thread so all the responses will be in one place.

                Thanks.
                I'll move the post.
                Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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                • #9
                  Pattymd,
                  She tried asking them that and was told that simply that once they are aware of a disability, they have a legal right and responsibility to invoke FMLA.

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                  • #10
                    I guess my biggest concern is that this is starting to look and feel more and more like a personal attack and the HR Dir is using her position and "knowledge" to accomplish this.

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                    • #11
                      This HR person is completely off base. A disability does not automatically invoke FMLA. FMLA is to protect one's job when they have to be OFF WORK for a specific period of time (either in a lump sum, or intermittently). She's not missing any work. FMLA does not apply, period, if no time is being missed. What "time off" is being defined as FMLA leave? I'd ask that of this HR person, if it were me.
                      http://www.dol.gov/whd/regs/compliance/1421.htm

                      Having said this, there is no harm, no foul UNLESS she develops a "serious medical condition" as defined by the FMLA, meets all the other criteria, and needs time off, and the employer says she's used it all. But used it for what time off?

                      is it possible that what they're saying is that they aren't going to allow her to work from home those two days any longer? See my reference to "reasonable accommodations" in my first response.
                      Last edited by Pattymd; 01-31-2011, 04:44 PM.
                      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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                      • #12
                        I agree with you about them maybe wanting to end the working from home. Just can't understand why all the strong-arming, deception, intimidation, the focus on FMLA, and possibly unethical behavior.

                        My guess (and that's all it is) on that would be that taking on ADA may be tougher to prove and opens them up to more severe consequences if the run afoul of the law and it's a risk they are not willing to take.

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                        • #13
                          Originally posted by justjm View Post
                          IJust can't understand why all the strong-arming, deception, intimidation, the focus on FMLA, and possibly unethical behavior.
                          Or they could just be clueless. One of my favorite fortune cookie mantras is:

                          Don't assume malice for what stupidity can explain.

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