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Joseph, Lawyer
Category: California Employment Law
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Experience:  Extensive experience representing employees and management
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I am employed by a Kaiser Foundation Hospital in Northern California.

Resolved Question:

I am employed by a Kaiser Foundation Hospital in Northern California. In recent months the staff of all employment categories have been being harassed and 'counseled' by managers for 'patterns' of calling in sick. We are being advised to apply for FMLA for illnesses such as menstrual cramping, sinusitis, migraines, etc. so that our absences do not 'count against' us for attendance purposes when we are ill. One RN is even planning to have a hysterectomy soon because her cramps are so bad a couple of days of each month that she is unable to work. In essence, we are being forced to use FMLA for chronic 'illnesses' that may only cause an absence occasionally. FMLA is a time-limited, protected benefit for employees. Is this a legal interpretation of the FMLA? Can the employer force employees to sign up for FMLA for the types of medical problems listed above and then count illnesses which do not qualify for FMLA against us for attendance?
Submitted: 4 years ago.
Category: California Employment Law
Expert:  Joseph replied 4 years ago.
Hello and welcome to JustAnswer.

I'm sorry to hear about your situation and hope I can help.

Yes, unfortunately, an employer can require employees' to use FMLA leave for medical conditions that qualify for leave under FMLA so the absences don't 'count against' employees.

However, if the employer is requiring female employees to use medical leave due to menstral cramping, that could be considered discrimination based on a a protected characteristic (gender), and you could file a complaint with the Department of Air Employment and Housing for discrimination in violation of the Fair Employment and Housing Act.

You can file a complaint using the instructions available online here:

The Department of Fair Employment and Housing will investigate your complaint on your behalf and either file suit on your behalf or issue you a right to sue letter so you can pursue your claim against your employer through a private attorney.
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