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  1. #1
    Join Date
    May 2011

    Question FMLA Rules Concerning Attendance

    I've turned in all the required FMLA paperwork as completed by my Dr. and been approved FMLA. My condition requires me to have intermitent absense from work due to a cronic sinus issue that causes sleep apnea, headaches, and obviously shortness of breath. Our attendance pollicy has a requirement that we call in within two hours of the start of the shift. Even though the absence is coverd by FMLA they are trying to consider me A.W.O.L. if I miss this call in period. Wouldn't federal or state law pertaining to FMLA protect me in this situation. If I was awake to call in I could just come to work. Or assuming you know at 3-4 in the morning you haven't had any sleep your not going to set your alarm JUST to call in for work. Seams like being aproved for this leave would superseed any rules about how many hours into the shift you have to report. Anyone have any info on this! It would be greatly appreciated.

  2. #2
    Join Date
    Mar 2011

    Default Re: FMLA Rules Concerning Attendance

    leave is granted or not by the employer; that requires notification.
    I think you might have a problem trying to justify putting the burden on the employer to guess when you are going to be there and giving them little or no time to arrange coverage.
    to avoid inconveniencing you it requires others having to cope with last minute changes.
    not sure that what you are asking is reasonable.

  3. #3
    Join Date
    Feb 2007

    Default Re: FMLA Rules Concerning Attendance

    Seams like being aproved for this leave would superseed any rules about how many hours into the shift you have to report.
    You don't have a pre approved FMLA to use as you see fit...your Dr certifies for the leave, whether that is intermittent, or by the hour, or day week month...
    Your ER internal policies have control over what you are talking about... there is no "blanket FMLA leave"...
    they are trying to consider me A.W.O.L. if I miss this call in period.
    That would be true... because you don't have FMLA for that day. Each leave period must have the Dr certfication on the paperwork you advance.

  4. #4
    Join Date
    Mar 2007

    Default Re: FMLA Rules Concerning Attendance

    Union Worker welcome to the forum. Here is the link for Family Medical Leave Act.

    Many issues are addressed in the guidelines for FMLA. IF your specific question is NOT covered under the FAQ's then you may want to contact someone at the following:
    For additional information, visit our Wage and Hour Division Website: and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone,
    1-866-4-USWAGE (1-866-487-9243).

    Your member name would leave me to believe that you may also have a union contract in place that may or may-not offer you additional job protections. IF that is the case I would suggest that you talk to your local shop steward.

    NO state nor workplace rules can undermine what the federal guidelines for FMLA are. Any additional guidelines a particular state, employER, or union contract (CBA), must meet or exceed those set out in the federal guidelines. "The U.S. Department of Labor's Employment Standards Administration, Wage and Hour Division, administers and enforces the Family and Medical Leave Act (FMLA) for all private, state and local government employees, and some federal employees. Most federal and certain congressional employees are also covered by the law and are subject to the jurisdiction of the U.S. Office of Personnel Management or the Congress."

    Unlawful Acts
    FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any right provided by this law. It is also unlawful for an employer to discharge or discriminate against any individual for opposing any practice, or because of involvement in any proceeding, related to FMLA.
    Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions; nor can FMLA leave be counted under "no fault" attendance policies.

    Furthermore where your situation is rather unique you might get your certifying health care provider to add as a conditional necessity that you be excluded from the normal call in procedures. I am NOT 100% certain IF your ER would be required to accept that and exempt you from their normal call out procedures or not. Due to the nature of your illness and as you said IF you are already awake to call in you would be at work, I would think that IF your doctor stipulates it that your ER would be required to comply within reasonable use.

    Hopefully your ER is willing to work with you concerning your advance notice. I can see it from both angles your side as the employEE needing to be rested to do your job, and from the ER's view of needing you at your assigned work location. I would be of the mind to think that so long as you do not abuse your use of intermittent medical leave that it should not be such a big issue for your ER to exempt you from their normal call in/out rules.

    If a serious issue develops, due to your not being able to be compliant with your ER policy for call times then you may want to look closer at the FML Act for the provisions of reassignment of your job to one that can accommodate your short notice needs. If you needed this accommodation your wages and all benefits must remain as they currently are according to the information I glanced through.

    Intermittent/Reduced Schedule Leave

    The FMLA permits employees to take leave on an intermittent basis or to work a reduced schedule under certain circumstances. CFR Section 203)
    • Intermittent/reduced schedule leave may be taken when medically necessary to care for a seriously ill family member, or because of the employee's serious health condition.
    • Intermittent/reduced schedule leave may be taken to care for a newborn or newly placed adopted or foster care child only with the employer's approval.
    (See CFR Section 825-205)
    Employees needing intermittent/reduced schedule leave for foreseeable medical treatment must work with their employers to schedule the leave so as not to unduly disrupt the employer's operations, subject to the approval of the employee's health care provider. In such cases, the employer may transfer the employee temporarily to an alternative job with equivalent pay and benefits that accommodates recurring periods of leave better than the employee's regular job"

    You really need to read through those rules from the above link. At a brief glance I did see where various types of provisions are allowed for intermittent leave. So long as it is based on your qualifying condition(s). Also with intermittent leave you need only to have a doctors certify your need for leave at the onset and as "reasonably necessary" or required from your ER, unless your medical situation changes.
    (2) Intermittent or reduced schedule leave may be taken for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition or a serious injury or illness of a covered servicemember," even if he or she does not receive treatment by a health care provider. See 825.113 and 825.127. (emphasis added mine)

    Hope it all works out OK for you and your ER.

    Take Care and Be Well.

    Last edited by SteelMagnolia; 05-09-2011 at 03:42 PM.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln

    Take Care and Be Well.

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