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Reduced work schedule applicability

Discussion in 'Medical Leave & Disability' started by cnyman, Feb 11, 2013.

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  1. cnyman

    cnyman Law Topic Starter New Member

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    I have early stage Parkinsons's, and have good and bad days. I have been approved for intermittent FMLA leave - just 12-15 days per year. I work for a telecom company in NY, and after force reductions followed by Hurricane Sandy we have been having extensive forced overtime, anywhere from extending an 8 hour day by 4 hours to calling me in for 10 hours on my day off - sometimes both in the same week.

    I found that my symptoms worsened when doing overtime, and amended my FMLA application to include the Reduced Work Hours section, but it is actually a limitation rather than outright reduction, as the amount entered was 40 hours per week. I am told by the employer's FMLA office that my request is not compatible with FMLA guidelines due to already having intermittent leave, but they were unable to explain a specific conflict. If I cannot obtain this limitation I may be forced to apply for a greater number of intermittent days off, but even those get burned up fast at 10-12 hours per day. I am wondering if my situation is covered under FMLA Reduced Work Hours. Thank you.
     
  2. Betty3

    Betty3 Super Moderator

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    This is part of an opinion letter by the US DOL:

    Under the FMLA, the term “workweek” is the employee’s usual or normal schedule (hours/days per week) prior to the start of FMLA leave, and is the controlling factor for determining how much leave an employee is entitled to use when taking FMLA leave intermittently or on a reduced workweek schedule for a serious health condition. If overtime hours are on an “as needed basis” and are not part of the employee’s usual or normal workweek, or is voluntary, such hours would neither be counted to calculate the amount of the employee’s FMLA leave entitlement nor charged to the employee’s FMLA leave entitlement. Where overtime hours are not part of the employee’s usual or normal workweek, disciplinary action may not be taken against an employee for being unable to work overtime as a result of limitations contained in a medical certification obtained for FMLA purposes. If the normal workweek is greater than 40 hours, hours worked above 40 hours must be included in determining the maximum amount of leave available to the employee under the FMLA. For example, if an employee normally works overtime in three of every four weeks, then such overtime hours are part of the usual and normal workweek schedule of the employee and would be included in calculating the amount of FMLA leave available to the employee. This would be the case even where the employer may not know in advance of the workweek when overtime will be scheduled or how much overtime will be worked that week as overtime hours may be based upon business demand that varies from week to week.

    In calculating the amount of FMLA leave available to an employee whose schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period would be used.
     
  3. cnyman

    cnyman Law Topic Starter New Member

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    Thank you for the information. As I am mainly concerned with avoiding overtime rather than the amount of leave to which I am entitled, and OT is not a routine part of my work week, the part above that relates to my problem is:

    "Where overtime hours are not part of the employee’s usual or normal workweek, disciplinary action may not be taken against an employee for being unable to work overtime as a result of limitations contained in a medical certification obtained for FMLA purposes."

    What I need is to have a limitation of 40 hours contained in my FMLA certification, and the above excerpt seems to say that a limitation is possible that applies only to overtime. What I need is firm information that I can submit to my employer's FMLA office to show that such an inclusion is legitimate, and I need to do so soon, as I am subject to unpaid days off if I refuse mandatory overtime.
     
  4. army judge

    army judge Super Moderator

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    You might wish to consult a labor or employment law lawyer.

    Otherwise (or additionally), try reading through this junk.

    http://www.overtime-flsa.com/new-york-state-labor-laws

    http://labor-employment-law.lawyers.com/wage-and-hour-law/Mandatory-Overtime-and-Your-Job.html

    http://www.newyorkovertimelaw.com/?gclid=CKqK8MOcsbUCFQbNnAod-g0AKg

    http://www.fslawfirm.com/unpaid-overtime.html
     
  5. cbg

    cbg Super Moderator

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    I'm wondering if you might not do better by requesting an ADA accomodation in the form of a limited work schedule, rather than going through FMLA.
     
  6. guestpost

    guestpost New Member

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    Thank you both. I'll check the linked info first and then decide how to proceed, and post the results in case someone else faces a similar problemn.
     
  7. Betty3

    Betty3 Super Moderator

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    In this case, agree. You need to come right out & tell your employer you are requesting a limited work schedule under the ADA as a reasonable accommodation for your disability. However, you can be covered under FMLA & the ADA at the same time. You could be covered under FMLA for intermittent leave of 12-15 days a year off & under the ADA for a 40 hr. work week as a reasonable accommodation.

    Under the ADA, the accommodation has to be a reasonable one for your employer - no undue hardship.

    It's probably best though to be covered under just one when possible. (FMLA or ADA - ADA this case)
     
  8. Elle

    Elle New Member

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    Speaking from experience, your doctor needs to be clear on the OT issue. Is your restictions against working more than a certain number of hours in a day or more than a certain number in a week? If the cert just says 40 in a week, then your employer can expect you to work a 12 hour day. A cert that just says, "no OT" is virtually worthless to an employer.
     
  9. Betty3

    Betty3 Super Moderator

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    Good point, Elle.
     

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