Is HR violating my rights under FMLA?

Anonymous

July 30,2023 at 2:49PM UTC

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Is HR violating my rights under FMLA?

I work for local government and have been with the organization for four years. Two years ago, I had a medical issue that resulted in an intense surgery. I was placed on FMLA, which was used intermittently throughout the rest of that year. The surgery led to diagnosis of an incurable, chronic pain condition. Last year, we did not have HR at all, and I managed through the year without FMLA. This year, my symptoms are coming back more strongly than they have, so I filed for FMLA through my employer/ HR, and was approved.

I reached out to HR to ask if I am required to use all PTO time prior to FMLA leave (already exhausted sick time), they told me I am not.

I have recently needed to use one day of FMLA, two weeks ago. I am approved for 4 days per month. The following week I found myself needing to work out a time sensitive project, and worked an 11 hour day rather than our typical 8 hour day. As per our Flex Time agreement, I left early to make up the time.

I received request from HR to meet to discuss “FMLA/Hours Worked. I called HR to let them know I would be out of the office during the requested time, due to the extra time worked/ using Flex Time. I was met with a series of questions that feel inappropriate. Some were regarding the Flex Time policy ( I double checked and I have followed it precisely, so no concerns there), but more disturbing were some of the statements and questions asked. HR said

”you’ve missed a lot of time” - yes, I have a chronic health condition, I am on FMLA.

“You are only approved for 4 hours of FMLA per month” - no, I am approved for 4 DAYS per month (she put me on hold to check and verified I was correct).

“it’s a lot of Fridays and Mondays” - I have a condition that flares up out of the blue, and I do spend many weekends in bed, trying to recover. So while this doesn’t surprise me, I’m not sure how accurate that is. I have used much of my pto time and sick time this year, and have only just used ONE FMLA day…. I would imagine they cannot question what days I have been off?

“did you eat when you worked 11 hours? We don’t want you to get sick from not eating” - I told HR what she clearly already knows from this comment, I rarely eat at work. Because eating can cause flare ups. I eat early evening every day, and have found this intermittent fasting to work well for me.

I feel like these comments are toeing the line of what’s appropriate, with being on FMLA. I was never questioned once when I was on FMLA in 2021, but we had different HR and different members of our Board. I feel like I am being targeted. Any advice on what to do at this point? I feel like they are trying to set me up to be fired.

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AnonymousJuly 30,2023 at 3:04PM UTC
Sorry that you are going through this and clearly you are managing your best. As a manager who has had an employee abuse the FMLA system, I suspect the new HR person may have had a similar experience and is suspicious. Your employer may also
be tiring of it, even if that’s not fair to you. So they may be checking into the legitimacy of your FMLA. Fortunately you have the doctors on your side.
Her questions weren’t really appropriate but also I don’t feel egregious. I don’t think you can so anything but take care of your health and hope her interest blows over.
AnonymousJuly 30,2023 at 3:54PM UTC
Thank you! This occurred while my direct supervisor is on vacation, I know I have their full support. But there are other political figures that could come into play, and it’s an election year. I have to sit and wait to see how far they try to take this, just trying to sort out at what point I might need to contact legal counsel. Thank you for your comment!
maria roseJuly 31,2023 at 10:58PM UTC
I don’t get why you bring political issues into this conversation about how should you be accommodated at your workplace ( which is a government job). Government jobs have HR departments that have really detailed checklists they have to abide by and maybe they might not be appraising your situation in a way you presume they should, but that’s how government HR works ( no deviation from the letter of the written rule) so any paperwork has to be done with all the dots and eyes in line. Like someone else recommended here in this feed, you should be keeping a journal of some sort—use your notes on your phone if you don’t always carry a notebook to physically write down any and all times you experience symptoms of your condition and when you have recovered—you need a running journal of dates and occurrences and what triggered the symptoms. It is already required for the continuation of the FLMA, which you have just started getting.
AnonymousAugust 1,2023 at 12:58PM UTC
Political issues are probably relevant because local government is driven by local politics; and FMLA/ADA accommodations are very much swayed by office politics.
It’s best to keep a written journal - you can alter a digital one later. That way it’s harder to prove that you wrote “X and only X” on Y date.
maria roseJuly 30,2023 at 4:59PM UTC
First sorry about your condition which seems to be a permanent problem and probably needs you to get a more permanent flexible work solution than using FLMA whenever.
I think that the HR department realizes that you need an adjustment to how your FLMA is utilized that also helps you contribute to your job without causing any problems with staffing, which is why they noted all the times/days that used FLMA time which appear to link to weekends. The pattern that is showing is that you need to be on a 4 day flex week schedule with 3 days off to allow you to physically recover. And those 3 days don’t necessarily have to be Friday, Saturday, Sunday or Saturday, Sunday, Monday if you are taking the FLMA to recover from the pain.
Now I don’t know if you’re in a workplace that has no work operations going on weekends (Saturday and Sunday) and the entire workplace is closed on weekends or if you’re are just scheduled Monday through Friday and off weekends. But whatever your schedule it is time to arrange a schedule adaptation that best works for you and your workplace and not just whenever. I say this because there’s a definite pattern to how long you can work without having to take time off because of your condition flare ups. I suggest you work out a schedule
AnonymousJuly 30,2023 at 6:52PM UTC
I have used one day of FMLA. I Have given thought to a set extra day off, thinking along what you’re thinking, but the flare ups don’t have a rhyme or reason, last month I had one that lasted 5 days, Saturday- Wednesday. The month before I didn’t have any. I have to reconcile my days off, as it seems they are lumping together pto & sick time.
maria roseJuly 30,2023 at 9:12PM UTC
Based on this reply you are only referring to recent needs ( last 60 days) but HR has a record of your entire pattern of days worked —schedule versus time off requests
for the entire 4 years on the job—it is a government job and they keep detailed records. You just have to make adjustments to fit your needs to their requirements. It might mean a difference in pay rates to fit your medical needs and still maintain your position. Another thing, when you work more than a certain amount of hours, you are required to clock out for a break even if you are not going to eat, which is why HR questioned you about when did take time to eat—legally by labor law you can not work long hours without taking/ clocking out for the break. You could have been written up and possibly fired for not taking the break. And that’s why you were questioned for leaving early. Apparently you aren’t really allowed to make schedule changes without permission despite being overwhelmed/ backed up to finish the job. I am getting the impression that you have a set schedule but prefer a flex schedule that allows you more weekend time plus paid time off for medical rest days when your physical ailment causes you pain. Sit down with HR , bring all your documents from your doctor and work out the adjustments that fit both your needs
AnonymousJuly 30,2023 at 6:33PM UTC
The company may make as many inquiries as they need to.
There is nothing illegal or inappropriate there. In 2021 you said your company did not have the same HR so you are making comparisons that aren't relevant. Unfortunately if the company wants to fire you they can. Especially if you are in certain states that do not require any reason at all known as an at-will state (most states). Further many non-profit overlook guidelines of employment due to either not understanding them or not believing the are overstepping..
AnonymousJuly 30,2023 at 6:58PM UTC
I’m under the impression HR’s responsibility is to be sure policies are being followed. If that’s the case, and they are following guidelines, shouldn’t the responses be close to the same? Interestingly, my FMLA approval paperwork specifics my employer would ask for inquiries if further time off might be required. That’s the option they chose. It seems like something has caused a sudden back peddle, as my FMLA was just approved last month.
Rachel Ervin KorbuszewskiAugust 2,2023 at 3:23PM UTC
Asking someone about their eating habits is 100% inappropriate.
AnonymousAugust 2,2023 at 10:08PM UTC
THANK YOU!!!
AnonymousJuly 30,2023 at 6:54PM UTC
Yeah, that’s what’s really killing me… I have often checked in to be sure I understand our policies (we have had 4 hr people in 4 years, our handbook hasn’t been updated in 5, it’s a mess), and have indeed followed all of their guidelines. It’s my understanding that if I stay within the 4 days per month I’ve been approved for, my doctor is not required to provide a note. When this incident occurred, my direct supervisor was on vacation. He feels this was done intentionally, as sadly my work environment is very politically motivated.
AnonymousJuly 31,2023 at 1:37AM UTC
You noted that you work for local government.
Is your position unionized? If so, definitely speak with your Union steward ASAP. If your position is not unionized, you still should speak with an employment attorney. While I love FGB, there are sometimes people who respond with borderline advice. Best to get it from an employment attorney in your state especially if you believe your job may be in jeopardy. It sounds like you need both your job and your health benefits. Good luck.
AnonymousJuly 31,2023 at 1:01PM UTC
Check out the attached article and then decide if you need to consult an employment attorney. Every state has different rules but federally, you may find something that applies to your situation.
chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.calstate.edu/csu-system/administration/business-finance/systemwide-risk-management/Documents/ftpt-2019-presentations/ADA-and-Intermittent-Leave.pdf
AnonymousJuly 31,2023 at 1:22PM UTC
Just a few observations from one who is NOT an expert on the legalities of FMLA or chronic pain issues:
1. FMLA and other labor laws differ in every state, so any explanations expressed here should be checked against the laws where you live. Some of the questions you are being asked border on asking for personal health information (PHI), which you do not have to disclose. Unfortunately, having a disability (chronic pain) invisible to all except the person experiencing it is challenging to prove without such disclosure. It, therefore, becomes a catch-22 conundrum (of this, I have significant personal experience). As one with PTSD, I have not been allowed an accommodation without indicating why, and because it is a mental health issue, it has become a barrier in the workplace. I'm unsure if it is worse to work without the needed accommodations or suffer the backlash of mental health stigma. Chronic pain can carry the same stigma, as it is also invisible, and those that suffer from it are often labeled as "drug seeking."
2. Unscheduled time off, which consistently runs up against weekends, often triggers an investigation by managers and HR. So, I assume they are doing due diligence to ensure that it is the health issue and not something else (often symptomatic of someone with an addiction). Therefore, the comments about a 3/4, 4/3 work schedule could be spot on. I once worked a schedule that rotated 5/1, 5/1, and 3/4 in a hospital. Since three teams utilized the same schedule, only staggered, it ensured coverage daily and on weekends. It was set up so there was an entire staff of all three teams Tuesday, Wednesday, and Thursday. The days off were Friday-Monday, with two teams working those days.
3. I doubt that your flares come without any triggers, so you may want to start keeping a journal of your day every day, including anything that can potentially trigger your flare. Work this out with your doctor(s), but some potential triggers could include stressors, what you eat, weather (especially if your condition is related to arthritis), and sleep. If you have a smart watch that measures your heart rate and sleep quality, these can also be something that could help.
4. DON'T give up. Keep studying your condition, and become an expert in it. It will help you communicate with your doctors and advocate for yourself with your employer.
I wish you the best of luck and hope you find answers soon.
AnonymousJuly 31,2023 at 1:52PM UTC
You said all I was going to and then some. I think also, the HR team is new and trying to wrap their arms around the tricky world of FMLA and invisible illness (I have one of them but have not had to use FMLA ever to date). I also agree strongly with what used to be called the F_M-itis and showed a pattern that made HR and management watch what was happening. It was usually a sign of something else going on - one of which a non-committed employee. Having FMLA throws a wrench in that as we can't control when flares happen so I think the suggestion of logging the days/triggers, etc. would help.
AnonymousJuly 31,2023 at 2:36PM UTC
I can attest that the Friday-Monday absences can draw attention. I dealt with it so much when my migraines were in a chronic state. I really struggled with “let-down” migraines. I could muscle through stressful situations and once they were over I crashed and burned. Also, disturbed sleep patterns over the weekend worsened an already intolerable illness. So thankful to have them under control and back to “episodic” I’m sorry you are dealing with the stress of worrying about your job while fighting an invisible illness.
AnonymousJuly 31,2023 at 5:23PM UTC
Does your company have a leave specialist? I'm going to guess that your HR rep - if they are not a designated leave specialist - is actually rather clueless and flying by the seat of her pants. I have no specific advice for you but IMO, sounds like they honestly don't know how to work with FMLA (and it can very by state plus throw in any company-specific policy and there's a reason I don't like being responsible for it).
AnonymousAugust 2,2023 at 10:04PM UTC
Shes so naive, she told me I had to take my FMLA days consecutively, meanwhile the paperwork she gave me states I am approved for intermittent leave. I would agree, she doesn’t get it. Thanks for your comment!
AnonymousJuly 31,2023 at 6:13PM UTC
Speak to an attorney. Alternatively document the conversation from HR and let them know in the legal department that you are in a protected class and that you expect the company to honor the rules of FMLA and not to intrude or suggest that you are creating something that is not a verified medical issue. Share with them your doctors notes and let them know that if there is some other work related issue they have that you are completely willing to discuss and take feedback but prying into your eating habits and such is not going to happen. Never again be alone in the room with that HR person and if you do go into a meeting with them again ask for it to be recorded or don't go unless you have your legal advisor present.
AnonymousAugust 2,2023 at 10:03PM UTC
Thank you!! I have been advised to not speak to her alone again, and am definitely following that guidance.
She did make comments regarding work as well, yet she knows nothing about my office or how it’s run. I followed our Flex Time policy to a T, but she tried to convince me I wasn’t allowed to take my time as I had explained I would… even going so far as to tell me my deputies (they assist my dept., as I assist theirs) “have other work to do”. It’s truly outrageous, the comments that were made.
thank you for your support!
AnonymousJuly 31,2023 at 7:26PM UTC
Not to comment if it's overstepping or not but just to add an HR perspective, if they don't know you very well and there are in fact several Mondays and Fridays taken and long hours without breaks, it is often trained to HR associates and leaders that this can be a sign of substance abuse. They may just be doing what they are trained to do to potentially address it or preferably rule it out. I've actually witnessed this happen from an HR stance and the person even had FMLA with doctors notes! Some doctors will do whatever they are paid to. Obviously that has nothing to do with you I'm just saying from an outsiders perspective, this may be the reason behind the questioning. I can see it being a bit of an overstep, and also, in the case I witnessed they were unfortunately right but stepped in and used company benefits to support them in recovery. It was uncomfortable but clearly they only intended to do the right thing for the employee.
Rachel Ervin KorbuszewskiAugust 2,2023 at 3:19PM UTC
The questions about whether or not she is eating are so over the line. HR are not doctors and have no business questioning how people are caring for themselves. Substance abuse or not. It is really not HR's place.
AnonymousAugust 2,2023 at 9:58PM UTC
Agreed 100%, I’m still so offended that a virtual stranger felt it appropriate to question my lifestyle in such a way. Even comments about my office and how it’s run are so off base. Thank you for your support!
AnonymousAugust 2,2023 at 9:57PM UTC
Since posting this, I’ve reviewed the sick days I’ve taken. Many were doctor appointments, and procedures such as colonoscopy/ endoscopy. We are allowed to use sick time for appointments. Thanks for your response, I appreciate it!
AnonymousAugust 1,2023 at 12:41AM UTC
No violation.
AnonymousAugust 1,2023 at 12:55PM UTC
IMO - semi-visible disability and chronic pain issues here - How much your doctor is willing to fight for you really depends on your doctor; how hard HR fights; and other factors.
While it’s not fair, invisible disabilities, chronic pain, etc have real stigma. As does intermittent FMLA. That one faker becomes the face of the million people who need it. I see the wisdom of “get a procedure on a Thurs and come back Monday” but that’s considered a flag of FMLA abuse.
Above all, never forget it’s HR’s job to find loopholes in “less popular” Federal laws. Having taken FMLA before, I would strongly encourage anyone using it to assume there’s a strong chance you’ll be dismissed for something else within a few months.
Keep your conversations with HR in writing only (she lied to you to your face about your leave allowance!), and I’d call an attorney.
maria roseAugust 2,2023 at 9:16PM UTC
HR is not “looking” for loopholes to deny FLMA, in fact the wording of the FLMA requires them to strictly enforce the letter of the law involving FLMA. So having all documents in writing is not asking for more than needed but a requirement by FLMA. Never make verbal requests always request in writing.
AnonymousAugust 1,2023 at 12:56PM UTC
So I work in HR in local municipality government. My advice is to document every interaction. Check your states laws regarding 1 or 2 party consent laws for recordings. If you can’t record try to write a detailed description right after every interaction. Local government for my perspective is slow to change to new employment laws. I have seen FMLA violations and others. If you feel like this is happening or they are attempting to it probably is. Too often I think people (especially women) don’t trust their gut in these types of situations. You have a lot going on with your illness and by what you described your HR dept is new. Your HR dept may be *new* to HR as well. I have seen local government hire promote people from socal services or other admin areas (tax, board clerks) to do HR. Not that HR can’t be learned. It can. However I think a lot of times with local government city/county management (for small places) don’t understand what HR actually does and see it as a place that just *pushes the paper* of what they want done. Hopefully you find this information helpful.
AnonymousAugust 2,2023 at 9:55PM UTC
Thank you for your response, I appreciate it. Since posting this, I’ve gone through all of our various policies, and reviewed my sick days. Our organization allows us to use sick days for medical appointments, which I’ve had several of. I have a folder full of policies, items highlighted, and have written out all of the offensive comments she made on the phone and all of the counter arguments. She, in many ways, broke our own policies by trying to steer me to follow some guideline she made up on the spot.
thank you again for commenting!
mona geeAugust 2,2023 at 4:47AM UTC
This has been done successfully by others.Layoffs were always already in progress.RIF was the next step for them.It worked for someone similar to you.It was not a warm welcome.
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