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  • Medical Procedure question Wisconsin

    My fiance is undergoing a colonoscopy this Wednesday, and requested the prior Tuesday off as well due to the "prep" causing uncontrollable diarrhea. Her manager refused to let her have the Tuesday off because she herself already has to pull a double shift and doesn't want to do a triple. She requested the days off the moment she found out about the procedure. Which would be a weeks advance. Is there anything she can do? I mean could they really risk her driving with uncontrollable diarrhea? She is also being threaten with her job. I forgot to mention this for the firing part.
    Last edited by Fohes; 04-10-2016, 07:56 PM.

  • #2
    Based solely on what you have posted, no. It doesn't matter how far in advance she requested it, unless the reason for the leave qualifies under FMLA (which this doesn't) the employer has no legal obligation to give her the time off. Is it really that unreasonable of her manager not to want to pull triple duty?
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      I have had a colonoscopy and from my experience, your wife should definitely not work (or even leave the house) the day before the procedure. It's not just because of the uncontrollable you-know-what (as if that weren't bad enough, but yes, it's bad, forget about driving, forget about even walking most of the time, prep day involves loooooong periods of time, like hours, spent sitting on the toilet), but also due to the myriad other medical-type things she will have to do at specific times throughout the prep day. In addition, she will not be allowed to eat from about 6.00 pm the day before the prep day and will therefore be quite weak throughout prep day.

      If this is a routine checkup, I reco your wife re-schedule the colonoscopy. If the purpose of the colonoscopy is specific, i.e., to detect a suspected disease, then perhaps FMLA will apply.
      Last edited by eerelations; 04-11-2016, 02:02 PM.

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      • #4
        I had a different experience. Both times I had colonoscopies, I worked until about 3:30 and left early to go home and start the prep. Maybe my prep was different but it started about 4.
        No I couldn't eat anything but that's not a huge thing for a day or so.

        Nothing illegal, though. Sorry
        I find that the harder I work, the more luck I seem to have.
        Thomas Jefferson

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        • #5
          My prep started at 9 am on the day before the colonoscopy. Possibly because the colonoscopy itself was scheduled for 8 am the next day? But whatever, there was absolutely no way I could have gone to work on prep day!

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          • #6
            Whether she should or should not go to work that day is not the issue, or the question, however. The question is whether the employer can legally prohibit the day off (yes) and can she be fired if she does not come in (also yes). Even if this is with relation to a suspected or known medical condition, unless there is ALREADY FMLA in place for that condition, this is unlikely to meet the requirements.

            I think rescheduling the colonoscopy is really the best solution. If they are already shorthanded and her absence is going to cause a hardship, I can't see that she'd going to be doing herself any favors in either the short or long term by digging in her heels on this - particularly where the law is not on her side.
            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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            • #7
              Unless the procedure is necessary immediately due to a current serious medication condition or emergency (doesn't seem so), can she reschedule it for a time more convenient to her employer/manager? Based just on what is posted, the manager is not/would not be doing anything illegal. It "seems like" FMLA probably doesn't apply - you do not mention her currently being on FMLA.
              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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              • #8
                Thank you for the responses. They ended up giving her tomorrow off, the procedure is due to an underlying cause. She has fat deposits in her liver, and inflamed intestines. She has been profusely vomiting the past 4 months, and she works at a assisted living facility with only single staff. I just didn't understand how they expect her to care for 8 residents while being stuck in the bathroom for hours.. She is not currently on FMLA due to being scared that even going to the hospital or doctors will result in a firing.
                Last edited by Fohes; 04-11-2016, 09:47 PM.

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                • #9
                  But that's the whole purpose of FMLA! To protect her from being fired for being ill! If she's ill and taking time off and not invoking FMLA, then she can be legally fired. If she's ill and taking time off and invoking FMLA, she can't be fired. She really needs to be using FMLA.

                  (And this is probably what has happened - she's finally come clean about the problem to her employer and her employer has realized this is likely an FMLA issue and has thus been forced to relent and give her the time off she needs.)

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                  • #10
                    She may now find that she does not have a choice in the matter. If the employer, the employee and the medical condition all qualify for FMLA and the employer knows, or even suspects, that to be the case, they would be in violation of the law if they did not at least initially provide FMLA protections. It is not her choice whether to use FMLA or not in that case.

                    She can, if she is determined not to use FMLA, refuse to provide any medical paperwork that may be requested. However, in that case, her job is NOT protected and she CAN be fired for any absences, regardless of whether they are medically related or not. She needs to understand that medically related or not medically related, HER JOB IS NOT PROTECTED UNLESS FMLA IS INVOLVED. If FMLA IS involved, she has up to 12 weeks of medical absences available to her for which she CANNOT be fired. Without FMLA, she can be fired the first time she calls in sick.

                    FMLA for a routine colonoscopy, which is what you initially sounded like you were talking about, was not going to trigger FMLA. Even as a diagnostic tool, it seemed unlikely. But the information you provided in your last post makes it sound as if it may meet the definition of a "serious health condition" after all, when added into other issues. It is to her benefit to utilize it.
                    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                    • #11
                      Does her employer have more than 50 employees in a 75 mile radius? With the staffing ratios you have stated (single staff at any one time), I have to wonder if the employer is large enough to fall under FMLA at all? Hopefully for her it does and she gets the protected benefit!

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                      • #12
                        Originally posted by hr for me View Post
                        Does her employer have more than 50 employees in a 75 mile radius? With the staffing ratios you have stated (single staff at any one time), I have to wonder if the employer is large enough to fall under FMLA at all? Hopefully for her it does and she gets the protected benefit!
                        Good catch!

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                        • #13
                          FMLA requires:

                          1. 50 employees within a 75 mile radius
                          2. 12 months of service
                          3. worked 1250 hours in the past year
                          4. a serious health condition for the employee, spouse, parent, or child under 18/disabled

                          If otherwise qualified, tests to determine the nature of or in preparation for treatment for a serious health condition can qualify. Routine diagnostic tests based on general health guidelines or in conjunction with non-serious health conditions would not. A colonoscopy because a serious medical condition is suspected and it is needed to diagnose and treat that condition is covered. A colonoscopy because she is the age when it is recommended or because of issues which would not be a serious health condition, it would not.
                          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                          • #14
                            "A colonoscopy because a serious medical condition is suspected and it is needed to diagnose and treat that condition is covered."

                            That's what I meant when I said "If the purpose of the colonoscopy is specific, i.e., to detect a suspected disease, then perhaps FMLA will apply."

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                            • #15
                              Good call.
                              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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