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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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My wife was out on workmans comp last year. So when she was

Customer Question

My wife was out on workmans comp last year. So when she was out of work via Dr authority, there were no issues.Around Thanksgiving time frame, same year, her dad got sick. She applied for and was granted ~198 hours of FMLA. She has only used 3 days. In the mean time she was out of work due to Dr authority and the company used here FMLA time while she was out. C
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.
Hello and welcome. I am very sorry to hear about your wife's medical issues. IF you would be so kind, can you clarify what your legal question is regarding this situation? What exactly would you like to know?
I very much look forward to helping you on this matter.
Customer: replied 1 year ago.
2014 - my wife was out of work due to a work related injury. She was in and out of work per Dr's orders. Workmans compensation. At the time she did not need to apply for FMLA to miss work for the injury. Around Thanksgiving time her Dad got sick and she was granted ~198 hours of FMLA for her DAD. Since being granted FMLA for her DAD, she again was in and out of work per Dr's orders work related injury. The company she works for used her FMLA hours for HER being out of work (not for her dad). So now that she really needs FMLA for her Dad - she doesn't have any FMLA hours left to use. The question is that can her company use FMLA hours that are suppose to be for her DAD, were used while she was out of work for her injury? Something isn't right about that. She didn't need FMLA or have to apply for it prior to her dad getting sick. The company used FMLA hours for her being out of work and not used for her dad. She only used ~24 hours of FMLA for her father. But the company used the balance of the FMLA hours granted when she was out of work per Dr's orders. Hope this explains it better.
Customer: replied 1 year ago.
We live in Tucson, Arizona
Expert:  Patrick, Esq. replied 1 year ago.
Thank you for your reply.
Unfortunately, I must tell you that this duel use of FMLA is not against the law. In fact, your wife's employer has a legal obligation to designate the time she is missing from work due to her own medical condition as FMLA. (See 29 CFR 825.301) This obligation exists because the FMLA is what protects an employee from being fired for missing work due to illness. IF the employer could simply choose not to apply FMLA to a qualifying medical condition, they could circumvent the law and fire an employee because the employee "wasn't on FMLA."
The fact your wife had originally applied for FMLA to care for her father and that such time will now be cut into is highly unfortunate. Many employers would make an exception to the rule and allow an employee caring for a family member to take additional time off work. But from a legal standpoint, this is not required, and what you describe your wife's employer has doing is in full compliance with the law.
I hope that you find this information helpful and am genuinely sorry if it is not what you were hoping to hear. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.
If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.
Expert:  Patrick, Esq. replied 1 year ago.
Hello again,
I just wanted to followup with you to make sure that you did not have any further questions or concerns. For some unknown reason, the experts are not always getting replies or ratings (which is how we get credit for our work) that the customer thinks have gone through. In your case I have not yet received either. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the site administrator.
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.
Very best wishes.

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