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Required to make up weekend days from FMLA in NC

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  • Required to make up weekend days from FMLA in NC

    My wife, a resident alien, has been employed in housekeeping at a hospital that employees over 4000 personnel for 4 1/2 years. She became very ill in September with a Diabetes-related sickness and was on FMLA for three weeks. Her department superviser now is demanding that she must work this weekend to make up for a work weekend missed.
    She has gone to HR employee relations, who is at this point stating that department policy allows no difference in treatmnent for FMLA than someone who calls in sick under their "no fault" attendance policy.
    I researched the DOL website and found under 29CFR825.825.220, and found that "employers cannot use the taking of FMLA as a negative factor in employment actions, such as hiring promotions or disciplinary actions: nor can FMLA leave be counted under "no fault" attendance policies."
    What can we do in this situation that I interpret as violation of federal law, without my spouse being terminated?

  • #2
    If the company would require an employee who was sick under other circumstances to make up a weekend of work, then they are not discriminating or retaliating against her for taking FMLA. That's what HR is trying to tell you.

    It's unclear from your post whether weekends are a normal part of your wife's job, but I assume they are, or whether it's working this weekend as opposed to some other weekend that's a problem.
    I am not able to respond to private messages. Thanks!

    Comment


    • #3
      You are misinterpreting the law.

      FMLA cannot be treated differently than other leaves. If the company required an employee on non-FMLA medical leave to make up a weekend, then an employee who IS on FMLA can be asked to do so as well.

      They simply cannot single out employees on FMLA to make up a weekend.

      Of course, if she makes up the time, it has to be restored to her FMLA allotment. But as long as they are not singliing her out BECAUSE she was on FMLA, they are not violating the law.
      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.

      Comment


      • #4
        I don't think I explained enough. This is not a company-wide policy, but a departmental policy in just one of the two hospitals in the city. The other hospital, under the same director, does not have this unwritten policy, nor do any other departments.

        Comment


        • #5
          I don't think you understand. As long as the policy is followed across the board within your wife's department, it is legal, even if other departments don't have such a policy.
          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.

          Comment


          • #6
            I guess we're stuck between a rock and a hard place on this one. This policy is not being applied to all employees in the department. Perhaps we need look at this under the EEOA instead.

            Thank you for all your help.

            Comment


            • #7
              Do you mean EEOC? The law does not require that employers be consistent in their policies and practices. The laws the EEOC enforces basically that that inconsistencies must not be due to an employee's race, national origin, gender, religion, and so on.

              Unless your wife is being treated differently because of one of those factors, then the EEOC has nothing to say about your wife's situation. If this weekend work is being enforced consistently in her department, then nothing at all illegal is taking place, even if other departments and other hospitals don't have the same policy.

              Comment


              • #8
                No, this policy is not being enforced with all employees in the department. My wife is a German national, who will not receive permanent residency status until July 2006. Certain employees have not been required to make up time.
                Last edited by Lumbi; 11-01-2005, 07:58 AM.

                Comment


                • #9
                  Okay, but that's not what you said earlier: This is not a company-wide policy, but a departmental policy in just one of the two hospitals in the city.

                  If this policy is only being applied to those who take FMLA and/or only being applied to your wife because she has a different national origin, then there may well be a violation of the law.

                  Comment


                  • #10
                    Can I check on this with the EEOC without retribution towards my wife? This opens up a whole new can of worms with possible reverse discrimination that I'm very reluctant to get into. This policy was not in effect with the old coordinator, who was of a different ethnicity.
                    Last edited by Lumbi; 11-01-2005, 08:14 AM.

                    Comment


                    • #11
                      I suppose you are free to discuss the legal issues involved with the EEOC (or the DOL for the possible FMLA violation) but keep in mind that you have no legal standing here. Only your wife can file a complaint with either gov't agency.

                      Comment


                      • #12
                        Yes, I understand. My wife is not computer literate, and asked me for help in this situation. Although she has received numerous commendation and thank-you letters from different department workers and patients, they are rarely acknowledged by her coordinator, and feels she is in a hostile work environment.

                        Thank you so much for all the information. Due to her disabilities, she is unable to operate a motor vehicle, and is dependent on myself and others for transportation. She is actively searching for a position within another department, and does not want to "create a scene" under this supervisor.

                        I will be recommending this site to everyone I know. Once again, thanks!

                        Comment


                        • #13
                          The legal definition of a hostile work environment is one in which the employee is being subjected to either sexual harassment or illegal discrimination under Title VII. I mention this only because there is a great deal of confusion/misinformation about what legally constitutes an HWE.
                          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.

                          Comment

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