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Does mandatory on call from home count for fmla hour

Customer Question
Does mandatory on call...

Does mandatory on call from home count for fmla hour eligibility

Lawyer's Assistant: Have you documented this or discussed it with HR?

Yes, I have discussed with HR, and they are stating that mandatory on call does not count for eligibility, so I said that if not considered FMLA work hours, we should not get discipline and occurrence for calling in for on call. They have not answered me back about taking away the discipline and occurrence for calling in on call. I said that I am applying for intermittent fmla to protect myself with the mandatory on call that I am getting occurrences and discipline for when I call in for medical stuff. We get paid for the on call even though it is from home and is mandatory and not volunteer.

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Yes, it is a right to work state and is a fte enough for full time benefits

Submitted: 8 months ago.Category: Employment Law
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Answered in 14 minutes by:
9/19/2017
Employment Lawyer: John, Employment Lawyer replied 8 months ago
John
John, Employment Lawyer
Category: Employment Law
Satisfied Customers: 5,962
Experience: Exclusively practice labor and employment law.
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Ultimately whether on-call time is considered work, or a work hour that counts towards FMLA leave, depends on whether you are able to use it time for your own needs or whether it is so constricting that you couldn't use it for your own needs. For example, if you could shop, wash your car, do work in your house etc. on-call time generally will not be counted as a hour of work. On the other hand, if you have to stay so close to work or by the phone so often, then it should be counted as an hour of work countable for FMLA purposes. I understand your issue, but being disciplined for calling in for an on-call period is not the measure of whether accounts for FMLA leave. Rather, it is whether its a "work hour". Likewise, your being paid for the on cal time, does not constitute an hour of work under the FMLA regulations, which cross reference to the FLSA regulations - specifically 29 CFR 785.17, which states:

An employee who is required to remain on call on the employer's premises or so close thereto that he cannot use the time effectively for his own purposes is working while “on call”. An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call. (Armour & Co. v. Wantock, 323 U.S. 126 (1944); Handler v. Thrasher, 191 F. 2d 120 (C.A. 10, 1951); Walling v. Bank of Waynesboro, Georgia, 61 F. Supp. 384 (S.D. Ga. 1945))

In other words, whether you have an hour of work for purposes of FMLA time for "on-call" work dpends on how restrictive the time is. If it's sufficiently restricitive then it is an hour of work.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation - simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers (even though the website already charged you, it does not credit me with the answer unless and until you indicate you are satisfied with the answer). If you are on a mobile device, you may need to scroll to the right. Thank you, ***** ***** wish you all the best with this matter.

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Customer reply replied 8 months ago
This is what I suspected that it is just about semantics in that as the employee that I feel that it is restrictive since I have to be near a phone to be called in and can be called in at anytime during the period of on call, but since I can take my cell phone to grocery store it is not restrictive. Although, the on call is mandatory and to volunteerily, and I have to be able to respond at anytime within a time period. Thus, I have no rights, and I have to just realize that I may be fired for calling in for on calls when I am having medical treatment, because I cannot be on certain medications knowing that I may be called in and need to be functional which some medications you are not. I consider this restrictive.
Employment Lawyer: John, Employment Lawyer replied 8 months ago

Yes, if it's overly restrictive, then you should have those hours count toward your FMLA time. If denied FMLA time, file a complaint with the Department of Labor, and they will review the situation under the authority of the DOL regulations. Hope this answers your questions. Thanks.

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Employment Lawyer: John, Employment Lawyer replied 7 months ago

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