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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15468
Experience:  Employment/Labor Law Litigation
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I presently work for home depot in Denver, I am also on an

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I presently work for home depot in Denver, I am also on an FMLA for medical reasons (O.A.) they claim that it has not been tracked correctly and are threatening disciplinary action. what is legal if they did not track attendance correctly? Can they terminate me without prior documentation ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

 

What do they mean it hasn't been tracked correctly? Do they mean that you have exceeded your FMLA days and they didn't realize it?

 

Are they saying that you had something to do with the tracking issue?

Customer: replied 1 year ago.

It is my understanding that both are true, they believe that I exceeded my time, however I spoke with HR in Atlanta and the associate advised me that my FMLA was still in effect but they had not received much information from the store. This was aprox 06/27/13. I have been on this leave since 09/29/12 at the stores vigorous insistence. As an employee I believe that I am still allowed to request vacation and earned sick time in accordance with SOP for attendance as some medical processes are planned. I was not aware that the store had little knowledge of FMLA

Expert:  Allen M., Esq. replied 1 year ago.

Well, if you've been out on FMLA for that long, there really isn't any argument here that the employer would be violating FMLA to terminate you.

 

You are only legally entitled to 12 weeks of FMLA leave and while the employer is supposed to keep track of that, you do bear some responsibility to at least know generally how much time you've used.

 

You've exceeding the FMLA allotment for legal protection months ago, so it would be very difficult for you to argue that you've been harmed by the employer's improperly FMLA calculation. Furthermore, sick leave and vacation is to be used in conjunction with, not in addition to, FMLA.

 

You can certainly argue that the employer's statement to you to continue to use leave caused you to reasonably rely on them, but you'd need to return to work immediately because once you become aware that you're over the time, you need to return to work. They are likely going to make you aware of the fact that you're over in this meeting.

Customer: replied 1 year ago.

Are you telling me that if I request vacation for a planned medical reason that counts as FMLA Even though its in accordance with SOP attendance? Am I not allowed to request any time without it being applied to the FMLA?

Expert:  Allen M., Esq. replied 1 year ago.

Yes, that is the case. The FMLA law specifically allows the employer to count vacation time, being used for FMLA qualifying purposes, against the FMLA total as well.

 

No, you are not able to control whether or not the employer counts time against the FMLA cap. If it would qualify for FMLA, it can be counted against that time.

Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 15468
Experience: Employment/Labor Law Litigation
Allen M., Esq. and 11 other Employment Law Specialists are ready to help you
Expert:  Allen M., Esq. replied 1 year ago.
I see that you have rated my service as poor.

What about my service was poor? Do you realize that that is a direct rating of me, personally?

I'm sorry that the law doesn't work the way you may want it to in your situation. I didn't write the FMLA law, which specifically allows an employer to simultenouesly count vacation and FMLA time. I'm simpy respecting you enough to be honest with you. I'm assuming that that is what you wanted...the actual answer to your question.

So please explain to me how my service was poor.

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