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Marsha411JD
Marsha411JD, Attorney
Category: California Employment Law
Satisfied Customers: 20222
Experience:  Licensed Atty, 29 yrs exp in the practice of law.
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I have medical certification (fmla) I requested 1 hour off

Customer Question

I have medical certification (fmla) I requested 1 hour off using annual leave. Can my supervisor deny my request?
JA: Because employment law varies from place to place, can you tell me what state this is in?
Customer: California
JA: Is the employment agreement "at will," union, full time or part time?
Customer: I'm a federal employee
JA: Anything else you want the lawyer to know before I connect you?
Customer: no
Submitted: 8 months ago.
Category: California Employment Law
Expert:  Marsha411JD replied 8 months ago.

Hello,

Thank you for your question. Are you asking if you can take an hour of your FMLA time, with payment from annual leave? What was the reason your supervisor gave you for denial? I assume you have intermittent leave, correct? Is this a notice issue or issue of one hour versus half a day?

Customer: replied 8 months ago.
Tue 1-Nov-16 07:00A-03:30P 10:00A-11:00A WP LWOP
AL was not requested prior the time and not approved by the official.I made the appointment the day before and place a leave request directly after. Another employee was off the same day and they placed their leave upon return to work the next day (11/02) and my supervisor approved it. Shouldn't this apply to this employee also? AL was not requested prior the time and not approved by the official.08:30A 1-Nov-16 to 02:30P 1-Nov-16 6 hrs CompTime/CreditHrs Approved
Requested: 2-Nov-16 12:29pm
03:00P 1-Nov-16 to 05:00P 1-Nov-16 2 hrs Annual Leave ApprovedIs it legal for a reasonable accommodation request to take 4 mos? There is more but this is my main concern
Expert:  Marsha411JD replied 8 months ago.

Hello again and thank you for your reply and the new question. First, to address your original question, I don't see where you responded to my question about whether or not this leave was FMLA related. If it was, and you didn't have any other choice but to take leave that day, then the refusal might be determined to violate the Act. You would have to file a complaint with the personnel office first and then if they don't resolve it, you could file a complaint with the Wage and Hour Division of the U.S. DOL, and also perhaps the EEOC if you believe the denial was motivated by your disability (temporary or permanent.)

If the request is for regular leave not related to your FMLA condition, then there is nothing unlawful in the supervisor denying leave, unless, again, they were doing so merely motivated by a discriminatory reason. In the latter case, you would again need to file a formal complaint with your personnel/EO Office and wait for them to take action before moving on with an EEOC complaint. Two employees don't have to be treated exactly the same, but the reason for the different treatment cannot be based on unlawful discrimination.

As for the new question. There is no time line, under statute, for an employer to make a reasonable accommodation decision. However, if after a reasonable time of receiving all the the necessary documentation, they fail to make a decision, the employee can move forward with a complaint to the EEOC.

Please feel free to ask for clarification if needed. If none is needed, then if you could take a moment to leave a positive rating in the ratings box above, I will receive credit for assisting you today. Thank you

Customer: replied 8 months ago.
my request was for fmla (see below), HR has my paperwork from my doctor. This mean I do have a case?10:00A 1-Nov-16 to 11:00A 1-Nov-16 1 hrs Annual Leave Disapproved
FMLA
Requested: 31-Oct-16 3:21pm
Supr: did not follow leave procedure, did not inform supervisor
Expert:  Marsha411JD replied 8 months ago.

Thank you. As mentioned, you may have a case for wrongful denial of FMLA leave. However, if HR or the DOL determine that you could have given notice earlier or made an appointment at a time which complies with your FMLA plan, there won't be any legal recourse. In other words, not every instance where FMLA leave is denied is actionable. Only those times when the employer is targeting the employee specifically for denial because of FMLA or when the employee has a emergency situation that cannot be scheduled to accommodate the employer's needs.

Expert:  Marsha411JD replied 8 months ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any further follow up questions for me from the answers I provided to you on the 9th. For some reason, the Experts are not always getting replies, or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid by the Site) for our work, that the customer thinks have gone through. In your case I have not received your rating.

Please keep in mind that I cannot control the law or your circumstances, and am ethically bound to provide you with accurate information based on the facts you give me even if the news is not good. If you are having technical difficulties with reading, replying or rating,please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.