Legal Question in Employment Law in Florida

I'm terribly sorry to hear of your illnesses and wish you the best. Let me explain the three different things you are dealing with, and one additional item that might help. There is the FMLA, which provides protection for leave (i.e., you can't be fired or disciplined for taking FMLA-protected leave), there is the labor contract, and there is the vacation/company policy. I don't know whether the contract or company policy provides additional FMLA protection to you beyond what the FMLA provides, so I will assume neither does. There is also the Americans with Disabilities Act (ADA), which might help you. I'll discuss that at the end.

The FMLA provides that you get up to 480 hours of unpaid, protected leave in any 12 month period (the company decides the period - it can be rolling, or anniversary, or calendar, such as 1/1 - 12/31). If you have paid leave such as sick leave or annual leave, you can use that to get paid while being protected by the FMLA.

In order to get the FMLA protection in any given 12-month period, you need to have worked (actual work, not just being employed while on sick or annual), for at least 1250 hours in that period.

You say you have been on FMLA for 7 years. Either the company gave you more FMLA-protection than you were entitled to, or you always were able to get 1250 hours of work. In any case, it seems like the company is now saying you will not have 1250 hours at the time you need FMLA protection. (They should tell you when you will have 1250, based on their best assumption of the amount of work you will do.) If so, then you will not be protected and will need to look to whatever protections you have under the contract in terms of avoiding being fired for too much absence.

And yes, it does not matter that you are actually sick, or if you have a doctor's note. A company can suspend or even fire you for attendance problems (including being absent for liver treatment), as long as they are consistent with their own attendance policies, unless you have FMLA-protection, or protection under a labor or private contract.

You mention too that you got your vacation which is on the same schedule as FMLA. My guess is that vacation is granted up front, and then you earn it as you go (so you don't actually have the 1250 work hours yet), or there is something else in the policy that makes it different from FMLA.

Next is the contract. You probably have rights under progressive discipline and the attendance policies. That may be why you won and then had a suspension reduced to 2 days. It sounds like progressive discipline is being applied, but at some point the grievance committee and then an arbitrator will rule against you because, unfortunately, you can not be at work all the time.

If the only problem is periodic doctor appointments, then perhaps you and a union rep. can sit down with a company rep. and rather than grieving and litigating, see if the company is willing to provide LWOP for the time you need treatment. Under these terrible circumstances, perhaps something can be worked out. (And remember to find out when you will have enough work hours to re-qualify for protection, assuming you are otherwise working.) Do you have enough sick leave or annual leave to cover the treatment time? Perhaps the company would forgo discipline if you use those. (I imagine they don't want to set any precedents by granting additional protection, but the union can agree in writing that this would not be a precedent or used by the union to argue that anyone else should get the same treatment.)

If the absences are more extensive than just time for treatment, or if that time itself is extensive, then besides trying to hang onto your job, are there no alternatives? Disability insurance? Disability retirement? Social Security disability? If so, you would be well-advised to look into those.

Last is the ADA. As you might know, the ADA provides that employers must make reasonable accommodation to those with "disabilities", such that the person can do his/her job. Your conditions (from what little I know of them) would likely count as disabilities under the current law. So, you should request a reasonable accommodation of leave for doctor's appointments (if that is what you need), from your supervisor. I imagine the company has a policy on accommodation which should then go into effect, including a review of your request. Although leave is an accommodation of last resort, it is considered a reasonable accommodation by the EEOC and is probably the only accommodation that would help you. However, it depends on how much you need as to whether it is "reasonable" or not. (Florida courts are not as generous as the EEOC, but if you have to bring a disability discrimination claim, you first do it through the Florida Commission on Human Relations and ask to "dual file" with the EEOC. You can find them online. http://fchr.state.fl.us/fchr or 1-800-342-8170. There are time limits, so do it soon after your accommodation request is denied, if that happens. Also, it is free to file and you do not need an attorney.)

If the accommodation is granted, then the company can not take disciplinary action against you for using it. If not, then as I said you can file a discrimination complaint with the state and EEOC. That by itself might prompt the company to try to settle and find a solution.

Again, best of luck.

Jeff Sheldon

Caveat: This is general information, does not create an attorney-client relationship and cannot be relied on for legal purposes since the author does not have all the facts about the matter discussed. Legal counsel should be hired if representation is required.