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  1. #1

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    Fmla/benefits/discrimination

    I have been on intermittant FMLA leave since the end of 2005. I am currently diagnosed with Fibromyalgia, Migraine and Multiple Sclerosis. When I first began taking leave I was only diagnosed with the Fibromyalgia and my employer told me that to be eligible for the FMLA and Their short-term disability plan I needed to sign a medical release so that they could have a nurse review my case to make sure that I was getting the best care. I didn't really question it much in the beginning because I didn't think it was going to be a long term deal. However, after more of a decline in health and being sent to a specialist the other diagnosis' emerged. My general practioner who has been managing and overseeing my care all along has been providing the Fmla paperwork for my employer all along. Now my questions and concerns are this...

    1.) My employer has required me to have Fmla paperwork filled out for each and every day that I had off for FMLA purposes. Meaning, even though my doctor had the paperwork filled out on an intermittant basis, my employer required each and every date be specifically noted on the paperwork which meant in some cases that they needed to be filled out more than every 30 days. Doing some reading now it looks like they cannot ask for paperwork more than every 30 days. Can you clarify this me?

    2.) I recently got a letter from my employer that they are refusing my latest paperwork for FMLA because it was filled out by my General practioner and not the doctor that I saw on that particular day. It is my impression that as long as my General Practioner is managing my care he can fill out the forms at it should be acceptable. Can you clarify this for me as well?

    3.) My employer has a short-term disability/sick pay policy that it carries itself. I believe that eventhough I am taking FMLA time I am able to use this benefit. The employers' handbook states the following on the policy...
    Sick Leave
    The Americans with Disabilities Act allows ACUITY to expect reasonable and predictable attendance from all employees. All regular full-time employees will receive their regular pay for their scheduled hours up to 8 in a day when unable to work due to illness or injury. If the duration of the illness or injury is more than 3 consecutive days, employees will be asked for a fitness-for-duty certificate from their physician.



    Long-term disability will take effect for eligible employees after a 270 day elimination period.
    My employer has been fairly generous in that they have paid me for all my time off up to this point, however they have required me to go above and beyond what the above policy states. They have required me to have a doctors excuse (besides the FMLA paperwork) for each day off and if I have a doctors appointment they what to know what it is for, where it is, when it is over, the travel time, who it is with, etc. I have questioned the employer as to why I am required to give this information when the short-term/sick policy clearly does not require it unless I am off for more than 3 consecutive days. I was told that because I take off more than the average employee I am required to do it or I will not receive the benefit. They told me that they take each case on a individual basis and therefore they decided that this what I needed to do to receive the benefit of pay. I did ask for this section of the policy in writing and was told that there is no such section of the policy in writing that they just do it on a case to case basis. It seems to me that this would clearly be discrimination to employees who have a medical condition or disability that requires care. I am curious if the Companies policy is legal and if nothing is in writing how they can refuse to pay when they will not provide me with a copy of what the policy requires? Can they make it up as they go along?

    4.) I have had the H.R. person and Managers both make snide remarks about me and taking time off. Saying things like it must be nice to take off whenever you feel like it or if your doctor won't provide us with that information maybe you should get a new doctor or your taking off again! I just wonder if there wouldn't be a way to legally document these incidents so that they are on record somehow that if need be they would be there.

    5.) Lastly, I wonder where the confidentiality lies with my medical information?

    I know that was a lot of questions, but at this point I don't know if legal action is necessary or if I want to take it. I would just like to know more of what the law is what is acceptable and not acceptable behavior.

  2. Super Moderator Samaritan & Scholar

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    Before I answer, please provide me with a little more information. Specifically:

    1.) What 12 month period does your employer use for FMLA? Calendar year, fiscal year, rolling year...

    2.) How much time, total, have you taken?

  3. #3

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    My company uses the Calendar year for FMLA.

    I would estimate that I have used approximately 180 hours of FMLA time this year. I work a normal 40 hour week, so I should be entitiled to 480 hours per year.

    Thanks so much for your help!

  4. #4
    Super Moderator Samaritan & Scholar

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    1.) It is my understanding that once every thirty days is the most often an employer can ask for medical certification. If they are asking for it more often AND if you wish to pursue it, your recourse is through the US DOL.

    2.) I've never had this come up directly so I could be mistaken, but I have to tell you, I don't have a problem with them wanting the certification to come from the doctor you actually saw.

    3.) The ADA is a completely separate law from FMLA, which does not serve the same purpose. Just because you qualify for FMLA does not mean that you are also covered under the ADA (and vice versa). The policy is not illegal and not discriminatory. It MAY, however, be a violation for them to be asking for extra notes for you IF they would only be asking for the extra notes for employees on FMLA. If EVERYONE, regardless of FMLA status, who takes the same amount of time off would be asked for the extra notes, they're okay; they just can't single out the ones on FMLA.

    4.) You are free to document these comments; however, I don't see any illegality about it. They are not required to be happy about the time you miss.

    5.) Medical information is the ONE thing that employers are required to keep confidential. They need to keep it limited to those who really have a need to know. Who that is, will vary with company structure.

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