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Forced to switch to part-time status due to intermittent leave New York

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  • Forced to switch to part-time status due to intermittent leave New York

    Hello, I am in the state of New york. I have a documented medical problem with an approved reasonable accommodation for intermittent time away from work. Essentially I can call out, come in late, leave early, etc under this accommodation without any disciplanary action up to 8 occurrences per month as stated in the approval letter for this accommodation.

    I am new to this site, so please forgive me if there is any necessary information missing as I am unsure as to what is needed.

    Anyway, during the last 2 months (July and August) I exceeded the "allowed" 8 occurrences, and was given a written warning (disciplinary action). The write-up is not what bothers me so much, its the fact that my hr representative tells me that since I am not here at work a certain percentage of the time, that I am not working full-time hours and therefore not entitled to full-time benefits, and that she is going to force me to change my status from a full-time employee to a part-time employee. Under the description of my benefits, as a part time employee I am in eligible for most of my benefits, and those that I can elect to keep will cost me approx. $500 per paycheck instead of the $80 or so I am paying now for me and my family.

    This would make it practically impossible to keep my benefits for me or my family, creating a need for me to work even less time in order to make myself eligible for state sponsored aid (medicaid).

    Is this legal?

    If any other information is required please let me know and thank you so much for your time and effort!

  • #2
    Das ist in der Doktor!

    During the last 2 months (July and August) I exceeded the "allowed" 8 occurrences, and was given a written warning (disciplinary action). The write-up is not what bothers me so much, its the fact that my hr representative tells me that since I am not here at work a certain percentage of the time, that I am not working full-time hours and therefore not entitled to full-time benefits, and that she is going to force me to change my status from a full-time employee to a part-time employee. Under the description of my benefits, as a part time employee I am in eligible for most of my benefits, and those that I can elect to keep will cost me approx. $500 per paycheck instead of the $80 or so I am paying now for me and my family.
    This would make it practically impossible to keep my benefits for me or my family, creating a need for me to work even less time in order to make myself eligible for state sponsored aid (medicaid).

    Is this legal?

    Yes, I believe it is.
    A reasonable accommodation does not mean your employer is forced to classify you as full time if you're not, nor does it mean you are immune from disciplinary action if you violate company policy.

    Your employer is bending over backwards to accommodate you,
    the law does not require him to bend so far as to break
    the bank in order to do so.
    You can check with an Attorney if you wish, there's always a good chance I don't know what I'm talking about...
    .._________________
    ~ Free advice is like a public defender,
    you get what you pay for. ~ drr
    Last edited by drruthless; 08-29-2012, 04:06 AM.

    Comment


    • #3
      Are you covered under FMLA?

      Comment


      • #4
        here is what the EEOC has to say if you fall under both ADA and FMLA:

        "13. Q: How do the ADA and the FMLA requirements compare
        regarding intermittent or occasional leave?

        A: Under the ADA, a qualified individual with a
        disability may work part-time in his/her current
        position, or occasionally take time off, as a
        reasonable accommodation if it would not impose an
        undue hardship on the employer. If (or when) reduced
        hours create an undue hardship in the current
        position, the employer must see if there is a vacant,
        equivalent position for which the employee is
        qualified and to which the employee can be reassigned
        without undue hardship while working a reduced
        schedule. If an equivalent position is not
        available, the employer must look for a vacant
        position at a lower level for which the employee is
        qualified. Continued accommodation is not required
        if a vacant position at a lower level is also
        unavailable.24

        The ADA does not prohibit an employer and an employee
        from agreeing on another mutually acceptable
        accommodation. For example, an employer and employee
        may agree to a transfer, on either a temporary or a
        permanent basis, if both parties believe that such a
        transfer is preferable to accommodating the employee
        in his/her current position.

        Under the FMLA, an "eligible" employee may take leave
        intermittently or on a part-time basis25 for his or
        her own "serious health condition" when medically
        necessary for treatment or recovery, until s/he has
        used up the equivalent of 12 workweeks in a 12-month
        period.26 When such leave is foreseeable based on
        planned medical treatment, an employer may require
        the employee to temporarily transfer (for the
        duration of the leave) to an available alternative
        position for which the employee is qualified and
        which better suits his/her reduced hours.27 "

        http://www.eeoc.gov/policy/docs/fmlaada.html

        Comment


        • #5
          Also in that same document:

          15. Q: Do the ADA and the FMLA require an employer to continue an
          employee's health insurance coverage during medical leave?

          A: Under the ADA, an employer must continue health insurance
          coverage for an employee taking leave or working part- time
          only if the employer also provides coverage for other
          employees in the same leave or part-time status. The
          coverage must be on the same terms normally provided to
          those in the same leave or part-time status.

          Under the FMLA, an employer always must maintain the
          employee's existing level of coverage (including family or
          dependent coverage) under a group health plan during the
          period of FMLA leave, provided the employee pays his or her
          share of the premiums.31 An employer may not discriminate
          against an employee using FMLA leave, and therefore must
          also provide such an employee with the same benefits (e.g.,
          life or disability insurance) normally provided to an
          employee in the same leave or part-time status.32

          The question then is are you covered under FMLA and how much time have you taken already this year and did you work 1250 hours in the last year? The employer only has to protect benefits for a maximum of 12 weeks.

          Comment


          • #6
            It is entirely legal to accommodate your medical condition by transferring you to a PT position. It is also legal to only grant the benefits afforded to others who work PT. It is not considered reasonable to allow you reduced hours on a regular basis while giving you FT benefits. FMLA is appropriate for temporary situations or when leave is needed in small quantities but if you are only working PT hours, your employer may treat you as a PT employee.
            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.

            Comment


            • #7
              thanks

              Thank you everyone for taking the time out to answer me. As far as I know, it appears that I am covered by the ADA and not FMLA. I am not entirely sure on that, but I'm pretty sure I raised that question once and I was told that I hadn't worked enough hours in the previous year. So, I have been certifying (and maddeningly recertifying over and over every 3 months) for an intermittent leave accomodation. And for this they tend to make it as hard as possible to comply. Is it legal for them to allow me only 2-3 business days from the time I receive the paperwork until the time I get it to my doctor, have them fill it out, and then have it sent to the third party who evaluates and approves/denies? I was recently disciplined for not getting the paperwork back in time when I was given two business days, and the doctors office themselves require up to 72 hours to get paperwork done. And this is for a permanent medical condition. I don't understand why I have to. Recertify at all, let alone every 3 months.

              Anyway, I'm really hoping they won't decide to force me to switch into a part time employee. They met with me two weeks ago stating I wasn't working enough hours to be considered a FT employee with FT benefits, I told them that this would improve because my condition had improved much recently and they agreed to give me a month to prove it to them. Unfortunately though I had just missed the last full week due to a different set of circumstances (I had a terrible dental infection at first causing me to be in way too much pain to work, and then a death in the family for the remainder of the week) which I am unsure if they would help my case at least in the respect of staying FT if I were to let them know and beg for mercy. In general I tend to try to stay as far away from HR as possible. Only bad things happen there.

              Comment


              • #8
                They met with me two weeks ago stating I wasn't working enough hours to be considered a FT employee with FT benefits, I told them that this would improve because my condition had improved much recently and they agreed to give me a month to prove it to them. Unfortunately though I had just missed the last full week due to a different set of circumstances (I had a terrible dental infection at first causing me to be in way too much pain to work, and then a death in the family for the remainder of the week) which I am unsure if they would help my case at least in the respect of staying FT if I were to let them know and beg for mercy.
                It may not be only your employers HR policy here... but the carrier writing the GHP/Group Health Plan benefits package, in which most IC require FT employees defined at those working 32+ hours/weekly. If that's the case, and you are not working FT, you could be dropped from the GHP coverage. This also affects the ER's contribution to your GHP... the difference between the $80 you contribute as FT, and $500 as PT employee.

                You are also overlapping a serious medical condition accommodation and a berevement/death leave...IMHO, you are looking to control the hours you work for your own convenience and not cooperating with the needs of your employer. I'm sorry if that sounds harsh, but any job you take is a "contract" between you and the ER, you agree to perform a specific job, work week etc, the ER agrees to pay you a predetermined wage. When one or another party breaks the terms of the contract... well, I think you get the idea.
                Good luck to you.

                Comment


                • #9
                  You must work 1250 hours in the previous year to be eligible for FMLA. It sounds like you didn't. Normally FT employees work between 1600 and 2080 hours (assuming FT = 30-40 hours per week).

                  Based on all you have posted, it doesn't sound like you have much of a case to stay at FT. Plus I think your extra timeoff (for whatever reason) is going to hurt you because it doesn't fall under FMLA/ADA, but is just one more place where the employer can point to you missing work that is NOT protected.

                  I am a bit surprised that they have kept you at FT this long. ADA doesn't require that they do so. As a matter of fact, one reasonable accommodation can often be moving from FT to PT (regardless of the change in status on benefits). The major goal of ADA is to keep the employee working.

                  Comment


                  • #10
                    ADA does not specify how often or even if an employer must request documentation of the need for accommodation. How often this happens is a function of your condition and the stability of your situation. It sounds like yours is relatively unstable if you are telling them you can work FT hours and for the past two months have needed even more days off than originallly requested. All are reasons for updating the documentation. Since you know they are going to request it when you have such a change or every 2-3 months, why not be proactive and ask your doctor for the documentation before they come find you and ask for it.

                    Their granted accommodation is extremely generous and far more than most employers would be able to provide. 8 days a months of unpredictable attendance is a lot. It sounds like you are exceeding that by quite a bit if you are not working enough hours to qualify for FMLA, whether for related reasons or not. Time off for dental infections and bereavement are not required, though they may fall under other policies offered by your employer. None of that time counts as hours worked to help FMLA eligibility.
                    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.

                    Comment

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