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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20363
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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I have fibro myalsia, sometimes I miss work from this. In many

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I have fibro myalsia, sometimes I miss work from this. In many cases I have presented doctors notes. I keep getting written up and I am now dangerously close to lossing my job, because they will not take my doctors notes or illness into consideration. I also had just put in for my transfer request before I started getting write ups a lot. I fell harrased every time I go into work. Is this possible medical discrimination? Is there something that I can do?
Hello,

Thank you for the information and your question. Can you tell me about how many employees your employer has an how long you have worked for them? Are you full-time? Does your employer offer sick leave and if so, have you used your time up? Finally, what State do you work in?
Customer: replied 4 years ago.

It is a large company, more than han 100 at my location. Been with company for 6 yaers. Part time working full time. I have not missed more than 5 days in a row. No need for s leave. I have used a couple days of sick pay, I have to miss more than 3 in a row to get it though.

Hello again and thank you for that information. However, I still need to know what State you work in. Also, I am not clear on what the reason is for you to be written up if you have not used up all of your sick leave. Can you explain that to me?
Customer: replied 4 years ago.

I live and work in colorado. They say my absences are excessive. I haveprovided doctors notes when I missed more than one day. I can only use my sick pay if I miss more thsn 3 days in a row and have my doctor fill out s form.

Thank you for that information. I am not sure why the employer has such a sick leave policy, but assuming that they enforce the policy for everyone, then that is legal, since they don't have to offer any sick leave at all. On the other hand, if they are only applying this three day in a row rule to you, then that would likely lead to a successful disability discrimination case. Another issue here though is why you have not been offered FMLA. That is the Federal Act that provides job protection for up to 12 weeks in a 12 month period for employees who have serious health conditions. In order to qualify, your doctor must certify that you need the time off (can be intermittent) due to a serious health condition. Your employer must have at least 50 employees and you must have worked for them for at least 12 months and 1250 hours in those 12 months. If you have, then your employer has violated the FMLA by not providing you with the certification paperwork.

If that is the case, then you can file a complaint with the Wage and Hour Division of the U.S. Department of Labor. If your employer takes an adverse employment action against you because of your absences that should have been protected by FMLA, then you would have a wrongful termination cause of action under the Act.

If, for some reason, you have worked at least 1250 hours in the last 12 months and therefore don't qualify for FMLA, then again, the employer can take adverse actions against you for failing to meet attendance policies, as long as it is a neutral policy and everyone is treated the same under the policy. Otherwise, as I mentioned above, you might have a disability discrimination case and you could file a discrimination complaint with the Colorado Civil Rights Division.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Customer: replied 4 years ago.

I have not been given this form by my employer. I heard anout it and looked into it, so does it cover past days missed?

You will want to go to your HR and ask them why you had not been given FMLA paperwork due to your condition and the need to take time off and continuous medical care for it. If they don't give you the form, then you can file the complaint I mentioned. Since they were supposed to give it to you as soon as they knew this was a recurring condition, they cannot use any absences that you took related to this against you for attendance purposes.
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