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I was just written up by my job for attendance after being…

Customer Question
Hi I was just...

Hi I was just written up by my job for attendance after being in the hospital. I have not been there a year

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Ohio

Lawyer's Assistant: Has anything been filed or reported?

Yes just signed the write up last week I have a condition that flares up and submitted that also under FMLA and it was denied of course

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

So now I am in jeopardy of losing my job if I don't make it until next year without getting no more than 4 more call offs or tardies

Submitted: 6 months ago.Category: Employment Law
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Answered in 5 minutes by:
12/19/2017
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Employment Law
Satisfied Customers: 13,287
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today.

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only. What specific questions did you have? I have an idea about your situation, but I don’t want to make any assumptions.

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Customer reply replied 6 months ago
How do I keep my job?I just feel like I am being punished for my health. What if I get cancer?
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

I'm sorry to hear about your situation. So, it's possible that the employer may be violating federal law. Under the Family Medical Leave Act (“FMLA”) eligible employees may take up to twelve (12) weeks off of their position to care for themselves or a family member that is dealing with a serious health condition. The employee is entitled to return to their same or similar job. A family member does not include in-laws, but does include a spouse and a child. or a parent. An eligible employee is one that has worked for their employer for the past twelve (12) months and has worked at least 1,250 hours in those past twelve (12) months. The employer must also be covered under FMLA before they are required to provide FMLA eave. A covered employer typically only has to have at least fifty (50) employees within a seventy-five (75) mile radius for at least twenty (20) workweeks in the current or preceding calendar year. Also, an employer is required to provide employees with notice of their rights under the FMLAand is required to provide you with notice of your FMLA rights when they have knowledge of a triggering event. In your case, it seems as if you were in the hospital, you may be eligible for FMLA and it is possible that the denial was unlawful or not done in good faith. This would be particularly true if you developed cancer and needed to miss work for treatment. You may have to speak with your department of labor regarding this because it is possible that they may owe you damages for the time that you had to come to work after your FMLA was denied.

What other questions did you have for me today?

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Customer reply replied 6 months ago
since I just started this job, they were in their rights to deny me. That is horrible
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

Have you worked for them at least 12 months (non-consecutively) total?

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Customer reply replied 6 months ago
you are also saying that anyone employed under a year has no job protection if they get sick?
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

Almost. You just have had to have been working for that employer at least 12 months total, even if it's non-consecutive. Have you just worked for them under one year?

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Customer reply replied 6 months ago
technically, I was hired via a temp agency from Sept. 1 2016 until officially through the employer April 3, 2017
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

Understood. Let me review something. One moment...

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Customer reply replied 6 months ago
ok
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

Ok, so, depending on whether you were an employee of the company when you were with the temp agency, you may be eligible for FMLA; however, you may have been considered an independent contractor at that time. If that is the case, and you haven't been working for them for 12 months, then you wouldn't be eligible for FMLA.

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Customer reply replied 6 months ago
Yep, I was listed as a contractor with the employer during that period.So I have no recourse, might lose my job, and I look like a loser in the employer computer system.Also if I leave, I will look like bad attendance and I have dr documentation for it all.
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

I'm sorry to hear about that. If you don't mind, could you tell me what the nature of the reason was you were in the hospital? The reason I ask is because it might be considered a disability and that changes things.

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Customer reply replied 6 months ago
Thank you for your time, I hope someone creates an amendment to the FMLA law to protect new employees.
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

One last question! If you don't mind, could you tell me what the nature of the reason was you were in the hospital? The reason I ask is because it might be considered a disability and that changes things.

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Customer reply replied 6 months ago
Gastrointestinal- undetermined final diagnosis so listed as Irritiable Bowel Syndrome. So flare ups occur a couple of times a month to the extent of being late or if real pain off work for 1-2 days
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

I see what you mean. Did they provide you with any reasonable accommodations for this? I mean like additional time to come into work if you had a flare up, extra breaks, things like that?

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Customer reply replied 6 months ago
Filed and they denied under FMLA policy
Customer reply replied 6 months ago
Just was late yesterday behind it and I will get a attendance point
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

So, this may be a different story because it's possible they were denying you reasonable accommodations owed to you under the Americans with Disabilities Act. The Equal Employment Opportunity Commission field office in your area will serve as the agency that would oversee the complaint, should you decide to file one. There are some basic processes that the EEOC files that I think you should be aware of, and I have listed them below:

The initial pre-complaint process can be found at 29 C.F.R. §1614.105. This is the process whereby you may bring this action to an Equal Employment Opportunity Counselor within 45 days. The Counselors must advise
individuals in writing of their rights and responsibilities, including the right to request a hearing after an investigation by the agency. The process may go through informal mediation wherein the employer and the employee try to come to a reasonable agreement. It’s voluntary and I highly recommend it in most cases.

Regardless, the EEO Counselor will issue a report based on their initial findings. Once the employee receives notice of the findings, they have 15 days to file a formal complaint.

The formal complaint process can be found at 29 C.F.R. §1614.106-108. Basically, the EEO will conduct a full investigation and come up with a Report of Investigation. The employee has the right to request an administrative hearing with an administrative judge after receiving the ROI or they may sue in a federal district court. Mediation is always still on the table. If the parties cannot mediate, then the parties will go through the administrative process or a federal civil proceedings and then the judge will issue a “Final Agency Decision” (for administrative hearings) or a ruling (for civil actions) If the employee doesn’t like the decision, then they can always appeal. A quick Google search will reveal your local EEO office so check that out.

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Customer reply replied 6 months ago
I have to go to bed now to get ready for work. Please pray for me and if you can send me any information on how to contact someone to re-evaluate this law for new employees that would be great.Again thanks
Employment Lawyer: Legal Eagle, Lawyer replied 6 months ago

The pleasure is all mine! Come back to the site if you have additional questions about this. Unless you have additional questions, there’s just a few other things I’d like you to know before we wrap up this conversation:

  1. Could you look on your screen and provide me a star rating? 5-stars are always appreciated.

  2. For your benefit, you can also click here in the future to request me individually.

  3. Don’t forget, if you haven’t already, you can always sign up for a membership with Just Answer and start asking more questions on the cheap.

  4. Don’t forget to tell your friends about justanswer.com!

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