TruthseekerTn
05-24-2008, 08:17 PM
I was off work for 3 months because of all the pain I have been in and still am.. and I knew it ran out.. well I didn't know this and It still don't sound right to me. wanted to see what Ya'll thought. My dr for the past 5 months since I went back to work has me on a 40 hour week and eight hours a day only. and they called me in the office this week and told me they couldn't go by it because my FML has ran out can they do that? it's not like it says I can't work under 40 hours a week. Its really hard for me to work 8 hours a day and they want me at times to pull 12 hours and weekends and I just can not do it..after 8 hours I go home and I crawl up in a ball hurting so bad. I was thinking about going back up there and saying something but I have to have my Job because it is going to be closing sometime soon and I can draw unemp. I don't won't them to get rid of me where I can even draw any money at all.. I thought if you had a dr's note like that They had to go by it or they can get into trouble if to say I hurt myself worse working over time. I don't know but at this point I will lose my job because if I say no I can't work over they give you 2 points every time and we can only have 21 which after I went back to work there was times I had to take off work and go see my dr and I have 7 points now was more but the take some off every 2 months. can they get away with this?
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hugg724
05-25-2008, 01:39 AM
Some quick questions before I try to answer this for you.
Was overtime part of your "normal" work week prior to your leave of absence?
Was your 12 weeks off unpaid or did you have STD for any of it?
How long ago were you out of work?
Was overtime part of your "normal" work week prior to your leave of absence?
Was your 12 weeks off unpaid or did you have STD for any of it?
How long ago were you out of work?
TruthseekerTn
05-25-2008, 11:15 PM
well from time to time there is overtime not always but if you have not been there long as others you get drifted and I was off for 3 months and I was drawing a check from FML through my Job..but I don't understand I've had this from my dr since I've been back and my fml has been out and I thought when a dr wrote a note saying you can not work overtime they would have to go by it. ohhh and far as drawing the whole time I was off no I got paid for 3 weeks of it. and my dr kept sending fax work and calling and still couldn't get them to pay after that..I feel helpless because Im in pain 24/7 and I can not work all those hours...if they make me work overtime couldn't they get into trouble if I get hurt worse which I can not see it getting in worse it's bad as it gets..I've been there 3 years the first 2 years I didn't miss a days work..she said I can get my FML back in July but I think the place is closeing before that..8 hours is hard to work I come home everyday in pain
hugg724
05-26-2008, 01:26 AM
FMLA is not as clear cut as one would think. Here are some key points.
The FMLA entitles eligible employees of covered employers to take up to 12 work weeks of unpaid, job-protected leave each year—with continued group health insurance coverage during the leave—for specified family and medical reasons.
Under the FMLA, the term “work week” 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 work week 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.
Ironically, it may or may not be FMLA that protects you. It could be the american disabilities act that protects you. Most people don't realize the ADA isn't just for those who are blind, hearing impaired, wheelchair impaired etc.
Employment discrimination is prohibited against "qualified individuals with disabilities." This includes applicants for employment and employees. An individual is considered to have a "disability" if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
Minor nonchronic conditions such as a broken bone, flu, etc isn't covered under the ADA but if you have a chronic diagnosis (and it sounds like you do), that limits what you are able to do, then it may fall under the ADA. You can read more about it here: http://www.jan.wvu.edu/links/ADAq&a.html
Keeping all this in mind, you do live in TN. TN is a right to work state where anyone can be fired, suspended, laid off etc for no reason. It is just too much of a legal risk to fire someone who has a medical condition. A company should try to work with an employee who has a physician statement limiting what they are physically able to do because the legal risk of that employee being hurt just isn't worth it to a company.
I hope something in here can help or direct you in the right direction to make some phone calls to see what rights you have as an employee!!
Have a great day!
The FMLA entitles eligible employees of covered employers to take up to 12 work weeks of unpaid, job-protected leave each year—with continued group health insurance coverage during the leave—for specified family and medical reasons.
Under the FMLA, the term “work week” 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 work week 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.
Ironically, it may or may not be FMLA that protects you. It could be the american disabilities act that protects you. Most people don't realize the ADA isn't just for those who are blind, hearing impaired, wheelchair impaired etc.
Employment discrimination is prohibited against "qualified individuals with disabilities." This includes applicants for employment and employees. An individual is considered to have a "disability" if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also are protected.
Minor nonchronic conditions such as a broken bone, flu, etc isn't covered under the ADA but if you have a chronic diagnosis (and it sounds like you do), that limits what you are able to do, then it may fall under the ADA. You can read more about it here: http://www.jan.wvu.edu/links/ADAq&a.html
Keeping all this in mind, you do live in TN. TN is a right to work state where anyone can be fired, suspended, laid off etc for no reason. It is just too much of a legal risk to fire someone who has a medical condition. A company should try to work with an employee who has a physician statement limiting what they are physically able to do because the legal risk of that employee being hurt just isn't worth it to a company.
I hope something in here can help or direct you in the right direction to make some phone calls to see what rights you have as an employee!!
Have a great day!
TruthseekerTn
05-28-2008, 09:30 PM
thanks for all the information. thanks for taking the time you put into it
TruthseekerTn
05-28-2008, 11:27 PM
my boss does not know that the office told me this. he has not ask me anything so I'm not going to tell him well the office told me I can't go by my dr's note because my FmLA has ran out. I would have got drafted today if he knew about it...never heard of a place Fmla or not that did not have to go by a dr's note because if I got hurt worse it's on them..I've been so upset over this whole thing because I know I can not do it. the plant is closing the end of June anyways but points add up fast and with it closing in june ADA would probably take to long, I guess I need to vent alittle sorry.between the pain and the depression that comes with it I'm at a lose.
SpineAZ
06-01-2008, 11:04 PM
If you were off work fully for 3 months then you would have exhausted your 12 weeks of FMLA eligibility. FMLA leave is 12 weeks per year. Some employers use a calendar year method (begin counting each calendar year) and many use a rolling method - so if your FMLA started June 1, 2006 your 12 weeks could be used by June 1, 2007.
If you have exhausted this year's FMLA,the company is correct that no job protection remains. But, to be sure - ask your employer show you how they have calculated that you have exhausted your FMLA leave. Federal leave is 12 weeks (some employers offer a bit more but the federal minimum is 12 weeks). And let's say 40 hours per week is your normal week, you would have 12 wk x 40 hr = 480 hours of leave. It can be continuous, intermittant, or a combination of both.
It is usable for your own illness, for the care of an illness of a direct family member, or for leave upon adoption/birth of a child.
For example, if you have surgery and are out of work for 10 weeks - you will have used 10 weeks of FMLA. You'd have 2 weeks left = 80 hours. So if your doctor says you can return to work but can only work 4 hours per day - the remaining 4 hours of the day would be considered FMLA.
Once you have exhausted FMLA your job is no longer proteceted. In addition, under ADA the employer should make accomodations as long as they are reasonable. So lets say a small company has 2 truck drivers full time. One becomes ill and under FMLA the hold his job for 12 weeks. At week 13 the employee comes back and says "I can work 2 hours a day" but if that is an undue burden to the company they can justifiably say that they can not meet the reccomended accomodation.
Also, some
If you have exhausted this year's FMLA,the company is correct that no job protection remains. But, to be sure - ask your employer show you how they have calculated that you have exhausted your FMLA leave. Federal leave is 12 weeks (some employers offer a bit more but the federal minimum is 12 weeks). And let's say 40 hours per week is your normal week, you would have 12 wk x 40 hr = 480 hours of leave. It can be continuous, intermittant, or a combination of both.
It is usable for your own illness, for the care of an illness of a direct family member, or for leave upon adoption/birth of a child.
For example, if you have surgery and are out of work for 10 weeks - you will have used 10 weeks of FMLA. You'd have 2 weeks left = 80 hours. So if your doctor says you can return to work but can only work 4 hours per day - the remaining 4 hours of the day would be considered FMLA.
Once you have exhausted FMLA your job is no longer proteceted. In addition, under ADA the employer should make accomodations as long as they are reasonable. So lets say a small company has 2 truck drivers full time. One becomes ill and under FMLA the hold his job for 12 weeks. At week 13 the employee comes back and says "I can work 2 hours a day" but if that is an undue burden to the company they can justifiably say that they can not meet the reccomended accomodation.
Also, some
TruthseekerTn
06-05-2008, 06:56 PM
the way my Dr said it to me is..yes my FMLA has ran out but what he has wrote has nothing to do with my reg working hours which is 8 hours a day and 40hours a week...we don't always have overtime so thats not counting on my fmla..if I couldn't work my 40 hours he said thats where the problem would come in but overtime is not part of it. if he knows what he is talking about...they are working over time right now trying to get out everything because the place is closeing down this month..the dr also said if I got hurt under dr's care that they would be in alot of trouble working me over my 40 hours a week 8 hours a day which I do work my reg hours which is 40 hours a week 8 hours a day so I don't know..I only have 3 more weeks if that is when they plan on closing it down..so I'm going to take it day by day and if they make me work overtime then take it from there