FML Leave and unrelated sick/vacation time.

[rcrisman]

Hi, hopefully someone can help me. I have a stomach condition that I get intermittent FML for. Usually, it hasn't been for more than a couple days a month, but I got really sick this summer and was out for 2 months. When I came back in August, they told me I was out of FML (rolling calendar year) and wrote me up for 3 days I missed due to pink eye in April - yeah APRIL. Our policies allow for 8 days regular sick time a year and I also get 3 weeks vacation - all of which has been applied to FML. At the beginning of the year, my manager was just immediately applying my paid sick time to my leave. She told me I did not get a choice. I found out later that she was incorrect (from HR) but it was never retroactively fixed. So, the bottom line is, I seem to not be allowed to be sick since I used up my 12 weeks FML. Shouldn't I still have 8 days for unrelated illness such as my pink eye and the case of flu I had last week? They now have me on final warning. I know they are just doing this because my FML upsets them, as I have been being mistreated ever since I got the leave.

It just doesn't seem right that they are applying the time this way. At the beginning of the year, I asked HR about it and he said that other non-FML time would be considered separate. Now he is going back on that with these write ups.

Can they do this? Do I have any sort of case here if they terminate me? I have to make it 3 months now with no leave at all. I accrue about 2 days a month back, but not necessarily before I need them. There is more going on, of course. They also wrote me up for "attitude" as I sought help from HR due to my mistreatment since I have returned to work. It's pretty apparent they are going to find someway to fire me. Help!

Thanks,

Randy

 

[Patricia_Young]

FMLA is applicable to all medical conditions that meet the criteria of a "serious medical condition". Generally speaking, pink eye is not going to meet the criteria and apparently, your employer didn't think so, either (or at least, doesn't now). You don't get FMLA per qualifying condition.

There is no law that says they can't write you up 6 months after the fact. That you may have had sick pay or vacation pay to cover the absence is a pay issue ONLY. And no, they weren't wrong the first time.

Substitution of Paid Leave

Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA.

http://www.dol.gov/whd/regs/compliance/1421.htm#2e

 

[rcrisman]

Thank you for the response, but I believe you may have misunderstood my question.

I get 8 days of paid sick time. I am not required to take that concurrent with FML. I used 12 weeks for my health condition. Should I not get the 8 days to use for unrelated illnesses such as pink eye or flu?

 

[Patricia_Young]

There is no LAW that requires them to pay sick time, even if you DO have it accrued.