1. Free Legal Help, Legal Forms and Lawyers. TheLaw.com has been providing free legal assistance online since 1995. Our most popular destinations for legal help are below. It only takes a minute to join our legal community!

    Dismiss Notice

FMLA leave threatened to lose full time status.

Discussion in 'Medical Leave & Disability' started by Mj7man, Dec 21, 2016.

  1. Mj7man

    Mj7man Law Topic Starter Guest

    Jurisdiction:
    Texas
    Hello,

    So for 2 to 3 years I have been having to use FMLA every week to every other week. My back has gotta so bad I can barely stand most days more or less make it to work. My doctor has now put me on a 30 hr a week restriction, so 6 hour days or ability to work from home. Anyways, my employer allowed the 30 hr schedule as a "reasonable accommodation" and denied working from home. The problem is, they also told me now that if I show a "pattern" of working under 30 hours a week, they would take away my benifits. This would be done by making me part time. So now I am terrified to take my FMLA time for days, and like today I have no choice but to take a day of FMLA. What can I do here? I'm learning now that there's no way possible I will be able to keep over 30 hours. I seriously feel threatened by my employer and they are making it impossible for me to take FMLA now.
     
  2. Disabled Vet

    Disabled Vet Well-Known Member

    Messages:
    846
    Likes Received:
    256
    Trophy Points:
    63
    Sounds like it times to file for Social Security Disability... You have to look at it from the employers stand point as well. Your spotty work history creates a hardship on them as well. They would much rather have you there working full time then to replace you. The people on this board will ask you a few questions. Like how many employees are there? The reasonable accommodation falls under ADA i think and not FMLA.
     
  3. hrforme

    hrforme Active Member

    Messages:
    625
    Likes Received:
    156
    Trophy Points:
    43
    What will happen if you continue to work enough hours (and 30 hours per week should be enough to get to 1250 in the last 12 months), is that your benefits will be protected up to 360 (or up to 480 until they formally change your schedule) hours off per year (regular hours per week in the new schedule of 30 hours times the12 week protection). How many weeks/hours you get can depend on your average normal hours. Right now it sounds like that is still 40... When the change you to 30, they can subtract 10 hours per week from your normal 480 hour (12 week at 40 hours) allotment, but can't take away benefits....That should give you close to 48 weeks a year protection.

    You might read through this link: FMLA FAQ: How Do I Calculate FMLA Leave Where My Employee's Work Schedule Varies From Week to Week? - FMLA Insights
    that explains a bit better how much leave entitlement you would get on intermittent with a varying workweek schedule.

    Your problem is only going to come into play if you use MORE than that amount of time in the year. Then the employer could drop you from benefits for not being a full time employee. But if your 30 hours a week schedule is due to FMLA schedule accommodation, they must continue your benefits during that time period.

    ADA generally doesn't protect benefits and insurance.
     
    Last edited: Dec 21, 2016
  4. txls

    txls Well-Known Member

    Messages:
    1,963
    Likes Received:
    272
    Trophy Points:
    83

    It is the insurance company that only covers those who are considered full-time(30hrs or more).
    However as long as you have FMLA time to cover the hours missed, then your actual hours worked don't matter, they still have to consider you full-time as far as insurance benefits.
     
    Betty3 and hrforme like this.
  5. Myjman

    Myjman New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    1
    Thanks, the accommodation is ADA. So my schedule right now is 30 hours per week. I ONLY take days off that are covered by FMLA. Though, they said if I have a pattern of working under the 30 hours that I would be taken off full time, losing, Insurance benefits and everything else. They did not say due to fmla, Just that is i showed a "pattern" whatever that means. And because im still scheduled fore 30 hours a week, i think disability is still off yhe table. From my understanding its full disability, so unless im under 20 hours, it won't make a difference. That's what i got from a disability help agency anyway ( private company of non-lawyers). Txls, you mentioned if im using FMLA they'd have to keep me as full time. I bern trying to find out that answer, from the sounds of my employer (HR) . Its implied that they will no longer consider me full time. It's confusing, and really why I came here. Thanks so far for everything.
     
  6. ElleMD

    ElleMD Well-Known Member

    Messages:
    3,032
    Likes Received:
    496
    Trophy Points:
    83
    No, they do not have to keep you at FT if you are using FMLA. If you are medically incapable of working less than 40 hour per week, then they can offer a reduced schedule under ADA. You would only use FMLA if you are off during those 30 hours you are scheduled. If on a consistent basis you are only working under 30 hours, then that would be a sign that the accommodation is not sufficient and your regular hours need to be further reduced to reflect the level of work you are able to perform- provided your employer is able to reasonably accommodate that type of schedule. FMLA is intended to provide temporary leave when an employee is unable to work for medical reasons (and other qualifying reasons). It is not intended to be a placeholder to permanently convert a full time position to part time.

    If you fall under the threshold to be offered benefits due to only being able to work <30 hours, you may no longer qualify for benefits through your employer. I haven't read your plan documents but 30 hours is a common threshold. This isn't an issue while using FMLA, but if you regularly can not work 30 hours per week, and your schedule is further reduced as a modified accommodation as a result, then it could be. Keep in mind that only hours actually worked count toward the 1250 to qualify for FMLA. If you are only working 30 hour weeks, and still use all 12 weeks of FMLA, you would no longer qualify under the federal regulations. Your employer may have a different threshold.
     
  7. Myjman

    Myjman New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    1
    That sounds about right, Im trying to just last out to end of January. I get new insurance that has 0 deductible. Hopefully I can get a survey to get me out of this horrible pain and finally get back to making money again full time. If i lose my benefits though, its never going to happen. What would you think a pattern would be. I just got 30 hrs 2 weeks ago, I missed 2 days the first week a day last week and today. Like I said I just need to make it till I have yhe new ins, I have high hopes my doc can help me, I've been limited due to high deductible.
     
  8. army judge

    army judge Super Moderator

    Messages:
    34,092
    Likes Received:
    5,618
    Trophy Points:
    113

    You can get to the New Year, mate.
    Think of it this way, you've come to far to not make it another 10 days.
    Its hard, I know, been there, got my T-Shirt to prove it.
    Just keep on pushing, drive on, hang in there, and finish what you started.
    Good luck, my wish for you is a healthier, prosperous New year.
     
  9. ElleMD

    ElleMD Well-Known Member

    Messages:
    3,032
    Likes Received:
    496
    Trophy Points:
    83
    I can't decide for your employer what they might see as a pattern. I would think if you are still using leave every week even with 10 fewer hours scheduled, it will be obvious after just a few weeks. I don't know how frequently they review leave usage. I would make every effort to be at work given that you are now scheduled to work more than a day less each week.
     
  10. txls

    txls Well-Known Member

    Messages:
    1,963
    Likes Received:
    272
    Trophy Points:
    83

    My apologies I was reading the limited hours as a temporary situation.
     
  11. Myjman

    Myjman New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    1
    Yes, my doctor put 30 hours a week for 4 to 5 years. Of course this changes if we can get a procedure or surgery that will work. I'm already setting up to get my nerves burned again right awsy, it helped last time but nerves grow back. Thank you for the best wishes. I really hope the pattern is over at least a month, by then I can get this relieved enough to get back to full-time.
     
  12. txls

    txls Well-Known Member

    Messages:
    1,963
    Likes Received:
    272
    Trophy Points:
    83

    I've never seen a hard and fast rule. Our handbook says "must work 30 hours or more on a regular basis." So it may be open to interpretation by your employer.
     
  13. ElleMD

    ElleMD Well-Known Member

    Messages:
    3,032
    Likes Received:
    496
    Trophy Points:
    83
  14. Disabled Vet

    Disabled Vet Well-Known Member

    Messages:
    846
    Likes Received:
    256
    Trophy Points:
    63
    Off topic... Have you ever considered getting a SCS implanted? Research this..... Spinal Cord Stimulator
     
  15. Myjman

    Myjman New Member

    Messages:
    11
    Likes Received:
    0
    Trophy Points:
    1
    Yeah, my doctor has brought it up,it may be one I'll be trying after the new year. I researched it quite a bit. Its scary to have a electronics implement tho lol
     
  16. Disabled Vet

    Disabled Vet Well-Known Member

    Messages:
    846
    Likes Received:
    256
    Trophy Points:
    63
    It is what kept me on this planet. The amount of pain it reduced was amazing. It doesn't fix the issue, just helps keep the pain level in check. My spine can't be fixed so the pain is there 24/7 no matter how much dope i take. The SCS helped cut the dope to almost 0 and allowed me to continue on with life. The really nice thing about it..... You can take it for a test run. I think it's like 4-7 days that they can implant it. Then if it doesn't help they can remove it. Very easy procedure with pain afterwards. So it's worth a try. Good luck
     
    army judge likes this.

Share This Page