FMLA violation, what should I do.

[itzobi]

I will try to keep this as short as I can.

As a patient I went to multiple docs, the second doc agreed that I should modify my duties until the MRI came back. I turned in the Dept of Labor FMLA form to my employer, they stated that I should be on light duty with no heavy lifting or driving.

At my work, an active policy exists that is for Modified Duty. My restrictions were 10lb limitation no driving, duration was not listed but a simple phone call could have resolved the situation.

The HR rep thinks I am abusing FMLA and called the Doctors office and told them that there was no light duty available for me, and that its "all or nothing". The medical assistant told me all of this after I called her and asked her what the HR rep wanted. The Dr. did not agree and they told me that nothing is going to change on the form.

After that didnt work, she then faxed them a letter stating that she needs more information from them as to flare ups, and is asking them to change the 10lb limit to 15lb, and to include driving but state a more detailed timeframe.

She has made several attempts to coerce me into either not having those restrictions listed by either intimidating me by telling me that would be nothing for me to do, or outright lying to my Dr's office about what the policy is.

She never communicated to me that she wanted to increase the weight restriction and include driving, overturning the patient/doctor decision.

Now the Dr's office is totally pissed off and may or may not correct the forms.

I believe what she is doing by the statements made to me by the medical assistant in the office that said she said its "all or nothing" is good enough alone to outright sue.

Thoughts?

 

[army judge]

If you think you have a case, and you must be the one to decide, discuss your findings with a couple of local attorneys. After those discussions, you'll be in a better position to see where you go next.

 

[cbg]

FMLA is for medical leave. It is not for light or amended duty.

You are confusing what you are entitled to under FMLA, and what you are entitled to under the ADA. They are two different laws, with two different criteria, and provide two different things.

FMLA is for medical leave. Period. It can be all in a block, or intermittent, but the ONLY thing FMLA provides is leave. There are no provisions whatsoever under FMLA to modify your duties. I'm not seeing that there was any kind of FMLA violation since you were not looking for leave.

If you want your duties modified, FMLA is not going to do the job for you. For modified duty, you need to invoke the ADA. There is no specific ADA form. To invoke the ADA, you need to notify your employer of your disability and request an accommodation. Please take important note of the fact that not all disabilities are covered under the ADA, particularly if they are short term. It is also important to note that even when the ADA applies, the employer is not obligated to give you the accommodation you want, or even the one the doctor recommends - only one that works. Your employer IS entitled to send your doctor a list of your duties and request additional info on what you can and cannot do.

 

[itzobi]

FMLA is for medical leave. It is not for light or amended duty.

You are confusing what you are entitled to under FMLA, and what you are entitled to under the ADA. They are two different laws, with two different criteria, and provide two different things.

FMLA is for medical leave. Period. It can be all in a block, or intermittent, but the ONLY thing FMLA provides is leave. There are no provisions whatsoever under FMLA to modify your duties. I'm not seeing that there was any kind of FMLA violation since you were not looking for leave.

If you want your duties modified, FMLA is not going to do the job for you. For modified duty, you need to invoke the ADA. There is no specific ADA form. To invoke the ADA, you need to notify your employer of your disability and request an accommodation. Please take important note of the fact that not all disabilities are covered under the ADA, particularly if they are short term. It is also important to note that even when the ADA applies, the employer is not obligated to give you the accommodation you want, or even the one the doctor recommends - only one that works. Your employer IS entitled to send your doctor a list of your duties and request additional info on what you can and cannot do.

The intent is to potentially use intermittent leave to cover absences from pain, appointments, phys therapy, future flare ups and for seeing a physical therapist. During this time, the doctor indicated on the forms that my duties that would be restricted, including not picking up heavy items.


Fact is, the HR rep is engaging in coercion with the Doctors office attempting to convince them that duty/modified duty doesn't even exist and trying to get them to release me for full duty. Even though a bonafied light duty policy exists and states that if they cannot accommodate in the employees current dept, they are to immediately refer him to another dept to perform work. I had to use this program a couple years ago and had no problem working in the office for 6 weeks to let myself heal. Granted, a different HR rep took care of it then, and now this new one is working here and she is going about entirely different.

Just 1 year ago an employee in our own dept was on modified duty with a 5lb limit for almost 6 months and no one did what she is doing to me, going back and forth with the Doctors office and if the FMLA forms are not perfect, or the light duty is not to her liking, it goes back to them again for days, they are sick of dealing with her and she wont allow me to return to work which has put me into a lost time situation.

 

[cbg]

Outside of the ADA, there are no circumstances whatsoever under which your employer is required to provide light duty or make any medical accommodations. This is totally separate from FMLA, EVEN IF you are using FMLA to cover intermittent absences for the same condition.

Once again; this is in no way, shape or form a FMLA violation unless she is refusing to allow you to take FMLA LEAVE after receiving properly completed FMLA documentation. If she is refusing to provide light duty or modified duty, that may or may not be an ADA violation (as you have described it, probably not) but it is NOT a FMLA violation. FMLA does NOT guarantee you light duty or modified job assignments. The ONLY thing FMLA offers or protects is LEAVE.

 

[itzobi]

So what should I do when an active policy exists for light duty with my company (govt), other employees have been afforded this opportunity, however, HR did not call their Doctor's office and attempt to convince them that such a program didnt even exist. The Doctors office is telling me that the HR said that its "All or Nothing" in regards to the work restrictions, the HR REP is trying to now go back and forth with them about increasing the weight from 10lb to 15lb instead, the Doctors Office is refusing to change anything from the original documents and is sick of dealing with me and her. All the HR rep has done in this time of almost a week now, is just send me home without pay while she goes back and forth with the Doctors office, dragging this out as long as she can. I am getting pretty frustrated

 

[cbg]

That's for you to work out with your HR office. You can certainly check with your doctor and see whether or not he thinks you qualify under the ADA, but if this is a short-term restriction only till the results of the tests come back, it probably is not. If the doctor agrees that the ADA is implicated, then you need to make sure your HR manager knows that you are invoking your ADA rights. (Unlike FMLA, it is your responsibility to tell your employer when you need an ADA medical accommodation, and just saying, "My doctor says I need xyz" is NOT enough to tell them that. While the law does not specifically require it, I always advise people to use the words, "I am invoking my rights under the Americans With Disabilities Act and require an accommodation" so that there can be no mistake in your intent.) If your doctor does not think the ADA is implicated, then this is not a legal issue at all.

 

[itzobi]

That's for you to work out with your HR office. You can certainly check with your doctor and see whether or not he thinks you qualify under the ADA, but if this is a short-term restriction only till the results of the tests come back, it probably is not. If the doctor agrees that the ADA is implicated, then you need to make sure your HR manager knows that you are invoking your ADA rights. (Unlike FMLA, it is your responsibility to tell your employer when you need an ADA medical accommodation, and just saying, "My doctor says I need xyz" is NOT enough to tell them that. While the law does not specifically require it, I always advise people to use the words, "I am invoking my rights under the Americans With Disabilities Act and require an accommodation" so that there can be no mistake in your intent.) If your doctor does not think the ADA is implicated, then this is not a legal issue at all.

The restriction is likely short term 1month-3months, the specific govt policy that is set states that I can be on this type of modified duty for a period of up to 90 days for reassessment at that point another 90 days is available afterwards, the condition though will need future treatment regardless. I have yet to receive any treatment as of yet, so Im not feeling any better currently, once my doctor and I feel like I am ready to perform 100%, then I can seek release, but then I should still ADA rights after that if my condition is a disability which I believe it is.

 

[cbg]

The problem is that the ADA protects permanent and long term disabilities. It does not provide protection for short term disabilities. 1-3 months is going to qualify as short term.

 

[Betty3]

Agree that the ADA usually does not cover a short term or a temporary condition/need. Sorry.

 

[disagreeable]

Your employer can determine they do not have a position available for you as they are all occupied or non existent.

 

[itzobi]

they responded by saying they have work but only part time (4 hours a day), even though just 1 year ago another employee in the very same department was allowed to be on a lower restriction.

They have me painted into a corner now, I have responded to tell them that I am seeing a new doctor or chiropractor to have my restrictions modified or lifted entirely, the current doctor I seen is not changing any restrictions I was told by his staff, not until I proceed with physical therapy and then a follow up visit with him on the 10th this next month.

unfortunately with my income situation, that leaves me out to dry in more ways than one, I believe I will either need to involuntarily resign my position and attempt to apply for unemployment benefits and cash out my pension to deal with my back issues, its sucks to have to do this, but I have wanted to sever ties with them for quite some time for numerous reasons.

The HR Rep has been up to this the entire time, calling my docs office and coaxing them to change it, then when they wouldnt, she had to let me back to work on some level, and this is the solution.

I am still on the offense by stating I can have them modified, but now because they have forced part time on me, I cant see the specialist and do physical therapy, instead, I must get adjusted and continue care with a new chiro that will lift or increase restrictions in a doctors note. I told them that I must be told what they consider "light enough" to be able to work full time, is it full release or is it X of pounds extra.

I am pretty stressed and distraught over this whole thing, all I was attempting to do was take care of myself and protect myself from permanent nerve damage.

 

[Disabled Vet]

My dad use to say this to me. Don't run around like a chicken with his head cut off.

1st thing is this.. is this a on the job injury? If not... Why does your employer look at your medical records or call your doctor to talk about "YOUR" medical condition.

You honestly haven't given enough information for a proper answer. Some injuries can fall into ADA which would require your employer to make reasonable accommodation. I don't know why your attempting to see another doctor if you feel your "HURT". Why don't you take out long term disability at your employers or by someone else.

If your hurt then you need to recover....... File for FMLA take the time to heal. then return back to full duty. As a spinal cord injured person.... i can say this I worked for 17 years for the same company. I never wanted to put them between a rock and a hard spot. If my condition flared up... I went out on short or long term disability. If you know your back has been acting up you need a plan to protect yourself from lose of income.

 

[itzobi]

My dad use to say this to me. Don't run around like a chicken with his head cut off.

1st thing is this.. is this a on the job injury? If not... Why does your employer look at your medical records or call your doctor to talk about "YOUR" medical condition.

You honestly haven't given enough information for a proper answer. Some injuries can fall into ADA which would require your employer to make reasonable accommodation. I don't know why your attempting to see another doctor if you feel your "HURT". Why don't you take out long term disability at your employers or by someone else.

If your hurt then you need to recover....... File for FMLA take the time to heal. then return back to full duty. As a spinal cord injured person.... i can say this I worked for 17 years for the same company. I never wanted to put them between a rock and a hard spot. If my condition flared up... I went out on short or long term disability. If you know your back has been acting up you need a plan to protect yourself from lose of income.

No its not an on the job injury, I turned in the FMLA and have been granted the 12 weeks of leave. They kept hounding my doctor for increasing the amount of weight to lift, he said he wasnt changing anything, and when I called their office and asked him if he would change it or fill out STD benefit paperwork, I received no response.

I clearly did not think this all the way through, now I am halfway in and out of a job unable to utilize any benefits, all I can do is put my tail between my legs, see another doctor to outright lift all of my restrictions and just deal with it, what else can I do? When I called the STD people, they didnt see how I could qualify for this, because I am still working.

They believe that I am just making up symptoms and am attempting to get out of work, but I am just looking out for myself and didnt want to pose any further nerve damage by attempting to lift heavy items anymore while its flared up and is healing. They have turned on me bigtime and are looking to just squeeze me right out of a job by doing this.

I have no safety nets in place, I am paycheck to paycheck and am out of paid time off, I need to undo this quickly or just quit working completely, dump my pension and start all over.

 

[itzobi]

Can I seek treatment from a different doc like a chiro and bring a new doctors note in with little to no restrictions? Or do I have to keep seeing the original doctor who wrote my restrictions, even though he is failing to work with my employer with easing up on it enough for me to work full time?

 

[itzobi]

because I have informed them that I am now seeking a second opinion either from my new PCP for a new plan, or a chiropractor to take over my care, and re-assist me with a new doctors note that is more liberal

 

[army judge]

because I have informed them that I am now seeking a second opinion either from my new PCP for a new plan, or a chiropractor to take over my care, and re-assist me with a new doctors note that is more liberal

If I were you, I'd seek treatment from a DO or MD only.

 

[itzobi]

ok im going to my new PCP physician for DO referall and a new note with less restrictions.

 

[itzobi]

they are treating me like an FMLA abuser, which I am not, even though with finally after years of reluctancy I decided that I finally needed to see someone about the backpain issues and be proactive, now they are chastising me for it by telling me my restrictions are too conservative, the doc didnt even come up with them, I admitted to them that I came up with them from research, I havent had any doctor yet explain my MRI study to me, so I was erroring on the safe side with regards to my health, instead they think I am just trying to get out of work, which I honestly am not, only trying to face this issue by the horns, they are making this harder on me by not letting me take it easy at work, even though I have over the years picked up all the slack for the dept, this is the thanks i receive, I honestly am thinking about just quitting and cashing out my pension, taking some much needed time off and get back to work in a year or so with more solid footing, I'm done playing games with these people.

 

[cbg]

Once again, FMLA is medical leave ONLY and does not entitle you to any work modifications, light duty, or changes in duty. If you need to be off work entirely, that's FMLA.

If you have a long term or permanent disability and need modifications or accommodations, that's the ADA. However, the ADA does NOT cover short term disabilities. For this purpose, short term would include pretty much anything less than six months.

Everything else is a matter between you and your employer and is not a legal issue.

Because it is not a legal issue, you are free to see whatever doctors you want and as often as you want. Since you've already turned in your FMLA forms and neither the ADA nor workers comp applies, the law doesn't care what doctors you see.