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Is this a FMLA violation?

Discussion in 'Medical Leave & Disability' started by tata505, Jun 27, 2013.

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  1. tata505

    tata505 Law Topic Starter New Member

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    I work in a hopsital as weekend option nurse. I have intermittent FMLA leave. According to our weekend option policy, an employee can miss 6 Saturday's or Sunday's during the year or they may lose their positon. I have missed 5 Saturday's and Sunday's total due to FMLA and 3 approved vacation days. My supervisor informed me that she will be removing me from weekend option because I have missed a total of 8 days this year. She also said that she would need to fill my position. According to HR, weekend option is based on hospital needs. Looking back I haven't seen where they had to pull someone to cover for me on these days. Also, if they were just getting rid of a weekend option position there were others who were hired into that position after me. By losing this position, my schedule has to change and I will lose approx $14/hr. Is this legal or a violation of my rights? She did say I could qualify for weekend option again based on my attendance as well maintaining my performance.

    Another quick question, this policy regarding 6 days off per year has been in effect for 4-5 years and we have had people go over there 6 days every year. When women go out on maternity leave they have not been removed from weekend option position and we have others who just missed over there time without qualifying for FMLA and they have not been removed. Seems that I am being singled out.
     
  2. army judge

    army judge Super Moderator

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    I suggest you discuss this with your HR. You might want to have HR or benefits explain FMLA to you, too. Doing research about FMLA might also be helpful. FMLA doesn't bestow extraordinary rights. Nothing seems inappropriate in what you've described. Choices deliver consequences.
     
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  3. tata505

    tata505 Law Topic Starter New Member

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    I have looked at the FMLA law and was under the impression that although they could move me around where needed they couldn't punish me by reducing my pay. According to the DOL rules, "When an employee returns from FMLA leave, he or she must be restored to the same job or to an
    "equivalent job". The employee is not guaranteed the actual job held prior to the leave. An equivalent
    job means a job that is virtually identical to the original job in terms of pay, benefits, and other
    employment terms and conditions (including shift and location)." I am not returning after using my FMLA leave with a job that has equivalent pay in terms of differentials.
     
  4. cbg

    cbg Super Moderator

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    Let's be certain that FMLA actually applies here. That has become an umbrella word for medical leave, but FMLA actually only applies when certain criteria are met, and if you are only working weekends it might be difficult for you to meet them.

    How many employees does the employer have within 75 miles of your location?
    How long have you worked for this employer?
    In the 12 months immediately preceding the beginning of your intermittent leave, had you worked a minimum of 1,250 hours for this employer?
     
  5. Betty3

    Betty3 Super Moderator

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  6. tata505

    tata505 Law Topic Starter New Member

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    Yes I def meet all requirements of FMLA. I work in a hospital, 12 hr shifts at night every weekend including Friday. I already have the FMLA and have been approved for it.
     
  7. army judge

    army judge Super Moderator

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    As was suggested, why not work for a amicable solution that BOTH parties can live with?
    Its always better to seek a compromise than it is to be contentious.
    The last thing you want to do is back someone into a corner.
     
  8. tata505

    tata505 Law Topic Starter New Member

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    Any suggestions on how to approach HR regarding this? When I spoke to HR rep he told me that it was based on hospital needs. I would love to work this out with HR, but kind of feel this is also because I have a claim against the hospital regarding a fall I had and injured my back. Any suggestions would be appreciated in the correct way to approach this or what would be best to say. Thanks everyone for the feedback.
     
  9. army judge

    army judge Super Moderator

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    If you fell while working, its simply a workers compensation claim.

    If you want that to progress, you should retain a workers compensation attorney.

    His or her fees are paid by the employer's insurer.

    I highly doubt the employer is doing anything to you because of a workers comp claim.

    Why not start your conversation with HR, "I think there's been a misunderstanding on my part. What do I need to do to repair my relationship with this fine hospital facility? I enjoy working here, helping our patients, and being part of a great team of healthcare professionals."

    Its also NEVER in YOUR best interests to mention what others have to to try and excuse what you have done (or are being accused of doing).

    Its best to own what you've done and try to change the perceptions of you in the minds of others.
     
    Last edited: Jun 27, 2013
  10. cbg

    cbg Super Moderator

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    Are all of the 11 weekend days you've missed, days that you definitely would have worked but for the medical condition that is protected under FMLA?
     
  11. tata505

    tata505 Law Topic Starter New Member

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    I have missed a total of 8 days, 5 of which have definately been covered by FMLA. The other 3 days were approved vacation days and then I missed 3 days for funeral leave which are not counted against anyone per hospital policy.
     
  12. cbg

    cbg Super Moderator

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    While the 5 FMLA days cannot be held against you, LEGALLY the other 6 can. Unless company policy rises to the level of a contract, which the very large majority do not.
     
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