Employer Harrasment

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Latest post 02-26-2013 8:11 PM by ClydesMom. 25 replies.
  • 02-26-2013 11:24 AM In reply to

    • Drew
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    Re: Employer Harrasment

    It will be interesting to see the outcome of new CEO Marissa Mayer's edict that her company, Yahoo,  will shut off all the work at home  approvals and come June everyone must show up at work.



  • 02-26-2013 11:27 AM In reply to

    • FallenM
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    Re: Employer Harrasment

    Google the DOL FMLA medical certification form.  An employer shouldn't be handing you a form that indicates what the doctor is supposed to say.  If you have FMLA-related problems, naturally you complain to the federal DOL about it.  If your doctor has completed a medical certification that meets FMLA/DOL's standards, then employer isn't entitled to pester you for another within a six-month period if the duration of the issue is indeterminate (at least that's my recall of new FMLA regs, but you'll want to check). 

  • 02-26-2013 5:27 PM In reply to

    • bsosna
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    Re: Employer Harrasment

    *****

    I appreciate evneryones response.  Everyone has seemed to take the FMLA ball and run with it.  The issue is not with FMLA.  Just gave it as background.  The issue is the company now wants me to "re-certify" and "justify" the FMLA days I was taking. They gave me a company provided Med Cert form since FMLA is running out.  Others have gotten the form too.  After speaking with others on FMLA and comparing the company form, mine has 2 additional paragraphs.  The one that speaks to pay and holiday pay.  The other paragraph has listed everyday that I took as an FMLA so since September.  They want my doctor to check mark each day as to whether it was a valid FMLA day or not.  Didnt my original FMLA doctor certified paperwork cover all this past days taken. Do they have the right to add these "customized" paragraphs to the form, whereas my co-workers just got a generic version of the form.

     

  • 02-26-2013 5:43 PM In reply to

    • FallenM
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    Re: Employer Harrasment

    "The issue is not with FMLA. Just gave it as background."

    I'm sorry, but you need to re-read your post.  :)

    "The issue is the company now wants me to "re-certify" and "justify" the FMLA days I was taking."

    So how is this ... not FMLA?  :)

    "They gave me a company provided Med Cert form since FMLA is running out."

    One more time, you aren't obligated by law to use some form the company has tweaked.

    One presumes under the strictures of intermittent FMLA you are identifying as you take the days what days are FMLA.  A doctor needn't see you and is not obligated to "certify" each individual day.

    "Didnt my original FMLA doctor certified paperwork cover all this past days taken."

    I know this statement-question is not directed to us (strangers).

    "Do they have the right to add these "customized" paragraphs to the form, whereas my co-workers just got a generic version of the form."

    I'm not sure which part of my response in particular you're ignoring/bypassing.

    Please discuss with federal DOL and, first, do some research at the dol.gov site as it relates to FMLA and, in particular, intermittent FMLA.

  • 02-26-2013 6:24 PM In reply to

    • bsosna
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    Re: Employer Harrasment

    Hello FallenM

    Thank you for clarifying.  At times on a message board it is so difficult to convey what a complicated and convoluted process this has become with this employer.  I didnt think they could this with this re-certification form.  I will contact the federal DOL.  My intermittent FMLA hours will be up approximately mid march.  I have always been a good employee and towed the company line in other major corporations.  This is the first time I have forayed into EEOC, FMLA etc and it is quite the maze.  :)

  • 02-26-2013 6:35 PM In reply to

    • bsosna
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    Re: Employer Harrasment

    Can someone give me a breakdown in layman's terms. Not being an attorney I find it quite confusing. I found this on the DOL regarding intermittent FMLA.

     

    Quote Quoting 29 CFR 825.308 - Under what circumstances may an employer request subsequent recertifications of medical conditions?
    (a) For pregnancy, chronic, or permanent/long-term conditions under continuing supervision of a health care provider (as defined in Sec. 825.114(a)(2)(ii), (iii) or (iv)), an employer may request recertification no more often than every 30 days and only in connection with an absence by the employee, unless:

    (1) Circumstances described by the previous certification have changed significantly (e.g., the duration or frequency of absences, the severity of the condition, complications); or

    (2) The employer receives information that casts doubt upon the employee's stated reason for the absence.

    (b)
    (1) If the minimum duration of the period of incapacity specified on a certification furnished by the health care provider is more than 30 days, the employer may not request recertification until that minimum duration has passed unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section is met.

    (2) For FMLA leave taken intermittently or on a reduced leave schedule basis, the employer may not request recertification in less than the minimum period specified on the certification as necessary for such leave (including treatment) unless one of the conditions set forth in paragraph (c)(1), (2) or (3) of this section is met.

    (c) For circumstances not covered by paragraphs (a) or (b) of this section, an employer may request recertification at any reasonable interval, but not more often than every 30 days, unless:
    (1) The employee requests an extension of leave;

    (2) Circumstances described by the previous certification have changed significantly (e.g., the duration of the illness, the nature of the illness, complications); or

    (3) The employer receives information that casts doubt upon the continuing validity of the certification.

    (d) The employee must provide the requested recertification to the employer within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts.

    (e) Any recertification requested by the employer shall be at the employee's expense unless the employer provides otherwise. No second or third opinion on recertification may be required.

     

  • 02-26-2013 6:35 PM In reply to

    • FallenM
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    Re: Employer Harrasment

    Presuming your medical issue won't suddenly disappear after March and they anticipate you taking off and attributing it to X-Y-Z other issues, they may be hoping to let you go after your 12 weeks' worth of time over a 12-month period deadline.  Who knows.  There are more specialized hoops when it comes to intermittent FMLA that I recall, and it isn't as though the employer has to allow whatever the worker pleases ... but it depends on the condition/issue.  (The mention of EEOC raises spectre of it being a permanent disability that you know qualifies under ADA, and note that a reasonable accommodation doesn't mean employer has to be ok with time off or lowering expectations; it essentially means doing stuff to facilitate the blind person, e.g., special equipment, etc. or not treating you differently simply *because* of your disability.)

    Meanwhile, if six-month recertification deadline comes before this mid-March point at which you'd use up all your FMLA time, you'll want your doctor to cough up another recert even if it's only technically needed for a day's worth of time.  Doesn't mean you can't pursue a DOL complaint about the special form/language and what the employer expects some doctor to "certify" in terms of individual days.

  • 02-26-2013 6:49 PM In reply to

    • bsosna
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    Re: Employer Harrasment

    FallenM. You have been great!  After the FMLA expires is there a medical certification form dictated by DOL that my employer must use or are they then allowed to make up any sort of internal form to "recertify" me so the additional time that I take off is justified.

  • 02-26-2013 7:24 PM In reply to

    Re: Employer Harrasment

    bsosna:
    After the FMLA expires is there a medical certification form dictated by DOL that my employer must use or are they then allowed to make up any sort of internal form to "recertify" me so the additional time that I take off is justified.

    Once the FMLA expires the employer has NO legal obligation to allow you to take more time off.  If they do have that then they can use an internal form.  The only form the DOL gets involved with is FMLA paperwork.  

    Just as an FYI:  I just went down this road with an employee who was on intermittent FMLA and took it all in one 3 month stint instead of intermittently.  At the end he applied for the personal leave that our employer has available on a case by case basis.  The whole issue was discussed with the highest leadership, human resources, and myself.  From a business perspective we could not grant another 4 months off as he was requesting because there were business projects on hold due to minimum staffing during the FMLA absence.  We could not hold off any longer.  He was told the request was denied and we expected him back at work on XXXX date.  He resigned intead of coming back.  

    bsosna:
    There are more specialized hoops when it comes to intermittent FMLA that I recall, and it isn't as though the employer has to allow whatever the worker pleases ..

    Not exactly.  The employee only needs to notify the employer of the absence, the length, AND that FMLA applies.  The employer cannot ask if the absence is FMLA related or WHY the FMLA is being used.  

    bsosna:
    Can someone give me a breakdown in layman's terms. Not being an attorney I find it quite confusing. I found this on the DOL regarding intermittent FMLA.

    Happy to.  Your employer can require you to recertify that your FMLA is still required every 30 days.  

    They can require it more often than that if your condition changes dramatically. For example:  you are on intermittent FMLA for headaches but are then diagnosed with a brain tumor and need to be out for 6 weeks straight to have surgery to remove it.  They can request documentation that the diagnosis has changed and surgery with a 6 week absence is required.  

    The employer can require re-certification more often if there is substantial reason to doubt that the employee is actually in need of FMLA.  For example:  you have intermittent FMLA to care for your terminally ill parent but your boss finds the obituary indicating they died 3 weeks ago but you have still been taking FMLA.  They can require you to re-certify that you are indeed on FMLA.  (and before anyone gets their knickers in a twist, FMLA does not cover grieving for a covered relative who has died)

    They can also require that you re-certify if you request an extension of leave.  For example, you have originally been approved for 4 weeks of FMLA for knee surgery but in week 3 get an infection and need 4 more.  The employer can request you re-certify.  

    The amount of time you get is 12 weeks based upon your work commitment per week.  So if you work 40 hours per week X12 weeks you are entitled to 480 hours in a year of FMLA.  If you take 4 weeks off the employer must deduct 40 hours each week from your FMLA balance.  If you are on intermittent FMLA and call out on FMLA for the first 4 hours of your shift once a week then obviously that time would to A LOT farther than 12 weeks.  Keep in mind that if you are a full time employee but only work 36 hours per week that is 36X12 weeks for 432 hours of FMLA per year. The calculation is made based on how many hours you are supposed to be scheduled per week NOT a standard of 40.


    Does this help?

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • 02-26-2013 8:00 PM In reply to

    • bsosna
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    Re: Employer Harrasment

    Thank you ClydesMom. Very good breakdown.  Yes the 480 hours will be used up by approximately the second week of March.  My Doctor stated on the FMLA original form that the condition was for an undetermined length of time.  If they want to recertify my condition still exists and it is within the 480hrs of FMLA does my employer have to use the DOL form WH-380
    or do I have to submit the company form they gave me.

  • 02-26-2013 8:11 PM In reply to

    Re: Employer Harrasment

    bsosna:
    If they want to recertify my condition still exists and it is within the 480hrs of FMLA does my employer have to use the DOL form WH-380 or do I have to submit the company form they gave me.

    From the DOL Form WH-380:

    "While you are not required to use this form, you may not ask the employee to provide more information than allowed under the FMLA regulations, 29 C.F.R. §§ 825.306-825.308."

    It appears that your employer is not required to use the government form and they cannot require you to provide MORE information than the federal form.

    However, the issue you have is not that they are ASKING for more information than the law allows but are disclosing information you don't think is necessary to your medical professional.  Unfortunately I can find nothing that states your employer can't disclose to your doctor your work hours and what you have been working and ask for verification of the continued need for FMLA.  I think this may be a losing battle for you.

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

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