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John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5615
Experience:  Exclusively practice labor and employment law.
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I didnt call in before my start time. I have asthma upper

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I didn't call in before my start time. I have asthma upper and lower respiratory condition. I call in after my start time because I was having a hard time, so my employer issue my a three day suspension.

Hi, My name is XXXXX XXXXX I’m happy to assist you with your question today. I’m sorry to hear about your suspension of employment.


If this employer has more than 50 employees, this would be considered a Family and Medical Leave Act (FMLA) violation. Specifically the FMLA regulations state,
"When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer's usual and customary notice requirements applicable to such leave. See § 825.303(c). Notice may be given by the employee's spokesperson ( e.g., spouse, adult family member, or other responsible party) if the employee is unable to do so personally. For example, if an employee's child has a severe asthma attack and the employee takes the child to the emergency room, the employee would not be required to leave his or her child in order to report the absence while the child is receiving emergency treatment. However, if the child's asthma attack required only the use of an inhaler at home followed by a period of rest, the employee would be expected to call the employer promptly after ensuring the child has used the inhaler."


In your case you may make the claim that you made the call in as soon as you were medically capable, despite the employer's call in policy and the leave was FMLA protected. Thus it would be considered FMLA retaliation for you to be suspended for taking that leave.


To enforce this FMLA right, you can file a charge with the Department of Labor - Wage & Hour Division. THey will investigate what happened, try to work out a resolution between you and the employer, and, if they find the FMLA was violated, they will sue the employer on your behalf if the matter isn't resolved. You can learn how and where to file here.




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