Boobookit

[Boobookit]

I work for a family owned business where they make up their own rules. My 22 year old son was in a major car accident and he has a broken back and broken ribs, etc.

I took a week and a half off without pay when he was in the accident.

Now 3 weeks later he has a doctor appointment. My boss, because she is on vacation says that we can not take off if anyone else is out. So because she is out she has told me flat out that I can not take off tomorrow to take my son back to the trauma unit of the hospital for a doctors appointment. She told me that although it is important to me that it is not to her and to change the appointment and make it for 2 weeks when she is in the office. My son's health is more important to me then anything....There are 6 other people in the office so I don't understand her reasoning...

Is this legal...can she stop me from taking off to take him to the doctor? He can't drive nor can he walk without the assistance of a walker.
Please help!

[cbg]

Not enough information. Please answer the following so that we can answer you:

1. What state are you in?
2. How long have you worked for this employer?
3. How many employees does this employer have within 75 miles of your location?

There is a Federal law and several state laws that might help you, but we need the info above to determine if they apply in your situation.

[Boobookit]

I live in New Jersey and I have been employed since May of 2004. We are a home health care agency...we have 7 people in our office plus about 80 home health aides and nurses that we send out to surrounding towns.
Thanks.

[cbg]

This is a crucial point which will make the difference between whether you have any legal recourse or not.

Are the 80 nurses and home health aides:

a.) employees of your employer
b.) independent contractors
c.) employed by a temp agency and contracted to your employer on an as-need basis
d.) other (please specify)

[Boobookit]

The home health aides and nurses are employed by my employer.

[cbg]

You may be in luck. Because you have worked for the company more than 12 months AND the company has more than 50 employees, you qualify for the Family and Medical Leave Act. This allows you up to 12 weeks of unpaid leave to care for a close family member - a son would qualify - when that famly member has a serious health condition that qualifies under the statute - a broken back would qualify.

I'll tell you right off the bat that you're on shaky ground in a couple of ways. The biggest hurdle you face is that your son is 22 years old - an adult. If he were under 18, there'd be no problem. But since he's over 18, technically he is not longer a covered dependent under FMLA. I think you'll be all right, however, since in his condition he could be considered to be incapable of self care. If an adult dependent is incapable of self-care, FMLA can apply. But that's not my call to make.

The other hurdle is that the employer has the right to demand medical certification that you are needed to provide basic care. Transportation IS included in that - that is not a factor. But they do not have to take your word for it, and when foreseeable, they can require up to 30 days notice.

I have to tell you that without FMLA, you would be out of luck. The employer has the right to determine who is and is not out of the office and when. They can dictate when you take personal or vacation time, and they can discipline you up to and including termination for violating company policy on the subject. If for some reason FMLA is not going to apply, there is nothing you can do.

What I would do is call the US DOL (which is the regulatory agency for FMLA) first thing on Monday. Describe your situation to them and ask them whether or not FMLA will apply. If they say it does, then follow their instructions for how to proceed.

If FMLA does not apply, you'll have to work things out with your employer as best you can. NJ has no state mandated family leave time and your employer does have the right to dictate your work hours, including time off, so FMLA is your only hope of forcing the issue.

[CurtJ.]

Everything CBG said, I second - meanign to pay particular attention to whether indeed your son is a dependent or not, whether his condition necessitates your care (or car of any fmily member regardless of age), etc. You should also make certain that your company meets the 50 employee test. It is 50 employees, not 8 employees plus 42 independent contractors which *you* consider to be employees but are actually not.

One thing I differ on is the notice requirement. There is a DOL reg on notice and filing. In essence, it says you must apply/give notice of fmla leave on company paperwork, if they have such. But, it is not an impediment if you do not use their paperwork as long as you give reasonable notice in some form. Also, the 30 day requirement is a guidance which can be excepted out of if the circumstances dictate. the easiest example is a pregnancy where the doctor gives you an expected due date. You tell the employer the expected date, however if the baby comes early or if an emergency c-section is needed, then the 30 days goes out the window since how could a person provide same under an emergency or suddenly changed circumsntances. likewise, if you get in a bad accident (or yoru son does) and the doctor says come back in 3 weeks, but after 2 weeks the condition worsens, you have to change the notice due to circumstances.

now, with all that said, you must remember that your taking of fmla leave is on you. I mean that you don't get to "precertify" or etc. Your boss says no, you believe the law protects you, so you take fmla leave. if they fire you, you bring a claim. if you're right, you're golden. if you're wrong, then its too late. you don't get to get a note of approval first where your boss says no. At your own risk thing, so just make sure you've dotted your I's and crossed your T's.

finally, NJ has a baby-FMLA (The NJ Family Leave Act) where the state confers certain rights on its citizen's in parallel to the FMLA. it is 12 weeks every 24 months. the big difference is that FMLA can be for yourself or others, whereas the NJFLA is only to care for others (not yourself, unless giving birth). I don't think you'll find anything "extra" in the NJFLA which isn't provided in the FMLA, but poke around. I do think it allows you to file in the NJ Division of Civil Rights rather than through the feds, but this may be just trading one bureaucrat for another.

good luck,

curt j.