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DID MY TX EMPLOYER VIOLATE MY FMLA Rights?

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  • DID MY TX EMPLOYER VIOLATE MY FMLA Rights?

    Here is the rundown. My wife & I had a pre-mature baby on 8-28; On 8/22(a week prior while she was in the hospital in pre-term labor), I applied for intermittent FMLA to care for her(and my baby), since the doctor had put her on bedrest after the birth. Until recently, The baby(born slightly under 2lbs) remained in the Neonatal I.C.U. Hospital, where I would visit it everyday.

    When I initially requested FMLA leave, I specifically told my Employer/HR Dept that it was needed only INTERMITTENTLY(mainly to protect my job) during times I might be running late because of either my wife or the baby. After, medical certification by my wife's Doctor, My FMLA was subsequently approved.

    During the next month & a half or so, on times when I was late legitimately because of my wife(bedrest & slight post partum) or the baby(bonding, parent-care classes, etc.). Most times, I did call to let them know I was running late. At first when I would call to advise them I'd be late, I told them the reason(spouse sick, parent care classes, etc) for my tardiness. Then, a co-worker of mine on FMLA told me that I was not required to give them the reason, I could just say "FMLA" & because I was approved, it would not count against me.
    Now bear in mind that my time off was UNPAID, which I could NOT afford to miss, so it wasn't like I was using FMLA to skate on being tardy just to go to the mall or something(even though it is quietly known at my job that a few people had abused the FMLA policies in the past)

    In the early part of November, I myself had to be hospitalized for acute diverticulitis. I ended up missing a total of 4 days of work. On the 3rd day, my wife came to visit me, during which time someone broke into her car & stole her electronic breast pump & some other stuff, like CDs, & baby clothes(AT THE HOSPITAL!). Needless to say, she was distraught( & was already still dealing w/some post partum & low milk production). A police report was filed( for insurance on the pump, which was rented). I returned to work the day after I was released from the hospital.

    HERE'S WHERE THE PROBLEM IS:
    Several days after I was released from the hospital, before work, I got a strange phone call from a guy that says he is a grocery store parking lot sweeper & early that morning he found my wife's breast pump & some of the other stuff in a bag dumped in his lot. My wife had an envelope that had our telephone #along w/some other personal info inside of it. The guy said more than likely, whomever stole it didn't know what it was or couldn't get any money for it. He said I could come & get it if I wanted it. He gave me the address of where he was staying, a sleazy little motel not terribly far away from where we lived. I asked if I could possibly get it the next day, the guy said he worked crazy hours & wasn't sure he'd be in; Now, because this might've been the only chance I could get the pump & other stuff & since my wife had been upset about the incident since it happened(not to mention not being able to pump for a few days), I decided to go get it right then;
    I notified my job by phone, spoke w/a supervisor, briefly explained the situation, & reminded the supe it was FMLA;
    Of course I'm not crazy enough to go to a motel to meet a stranger under these circumstances, so I called the police, referenced the Stolen property report # & was told I would have to have an officer accompany me to recover my property. I recovered the pump and was about an hour late for work.
    A few days later, I get a written occurance saying that going to recover my wife's breast pump(that she uses to get milk for the baby) is NOT covered under FMLA. I met w/ the head of my employers HR dept. She seemed annoyed that I was bringing this to her attention instead of the woman who signed off on the occurance, the HR Employee Realtions Dept. I tried to explain my story(in detail since this is important to my job security), but was impatiently told to "get to the part as to where a breast pump is covered under FMLA." I argued against the occurance, citing several regulations in the Dept. of Labor. that clearly proved the situation would be covered. She looked suprised that I even knew what my rights were. After jotting down 1 or 2 of the regulation #s I quoted, she said a meeting would be set up the next day between myself, She, & the Employee Relations Manager.
    I took some note cards with all the pertaining regulations & a pad & paper. I had them bring out the big Dept Of Labor book with ALL the FMLA laws in.
    I explained several reasons/regulations why I thought the situation was covered:

    Section Number: 825.116
    Section Name: What does it mean that an employee is ``needed to care for'' a family member?

    (a) The medical certification provision that an employee is ``needed
    to care for'' a family member encompasses both physical and
    psychological care. It includes situations where, for example, because
    of a serious health condition, the family member is unable to care for
    his or her own basic medical, hygienic, or nutritional needs
    or safety,
    or is unable to transport himself or herself to the doctor, etc. The
    term also includes providing psychological comfort and reassurance which
    would be beneficial to a child, spouse or parent with a serious health
    condition who is receiving inpatient or home care.
    (b) The term also includes situations where the employee may be
    needed to fill in for others who are caring for the family member, or to
    make arrangements for changes in care, such as transfer to a nursing
    home.
    (c) An employee's intermittent leave or a reduced leave schedule
    necessary to care for a family member includes not only a situation
    where the family member's condition itself is intermittent, but also
    where the employee is only needed intermittently--such as where other
    care is normally available, or care responsibilities are shared with
    another member of the family or a third party.


    I also argued a few other regs, including the definition of "medical necessity" & "serious health condition" as defined by the FMLA book. It applies to both my wife & pre-mature child(whom was still in the hospital during the incident).
    Both HR women seemed suprised that I was actually familiar w/some of these regulations & again, the head HR woman seemed annoyed that I asked her to flip pages & read off certain paragraphs. After rebutting what they'd come up with, they pulled out a copy of the original FMLA papers our doctor had filled out & sent back to them. Unfortunately, the doctors written reply to the FMLA questions on the papers ONLY covered my wife & her condition & only up until the delivery of the baby(which I have to recheck that. I thought it extended longer than that). According to to FMLA regs, FMLA can only be granted for that which is put on the paper(just my wife's condition & bedrest,) so anything having to do w/the baby's nutritional needs wasn't covered, thus my argument is lost.
    ***BUT***
    The 2nd HR lady said "Yeah, we've basically allowed you use FMLA because your daughter is a preemie"(implying that they had been doing me a favor). I IMMEDIATELY wrote that down on my pad. When I mentioned that she stated that, the head HR lady backtracked & said no, she didn't say that...I read what she said verbatim off my pad. The 2nd HR lady said she meant that they had "allowed me" to use FMLA for my baby even though they never got a written medical cert for my baby.

    HERE IS MY ARGUMENT:
    A) They never told me I would need a medical cert for both my wife AND for the baby.

    B) If it IS at their discretion that they "ALLOWED" me to use FMLA for my baby(even though there was no medical cert on file for the baby), CAN THEY DETERMINE what parts of FMLA can & cannot apply to me???

    I say because they "allowed" FMLA, i am covered under ALL THE RIGHTS of FMLA...Is this true???

    Then they gave me an blank FMLA to give my baby's NeoNatal ICU dr to fill out so they can now have an "Official record"...

    WHAT SHOULD I DO? i know this was long...

  • #2
    Duplicate post
    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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