If I have an employee with a long term medical issue who has given us a FMLA notice, if she leaves her shift early or comes in late due to this illness does that count towards one of her missed days for that week?

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If I have an employee with a long term medical issue who has given us a FMLA notice, if she leaves her shift early or comes in late due to this illness does that count towards one of her missed days for that week?

I have an employee with a long term medical issue. She has given us a FMLA notice from her doctor which states she is allowed to miss work up to 2 days a week due to this illness. And if we ask her to call us daily instead of write out her work schedule 3 weeks prior and send her to one of our local locations to work is that a fair thing to ask? And what can I do if she refuses this option?

Asked on May 11, 2017 under Employment Labor Law, Washington

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

1) Only medical absences count toward FMLA leave; if she misses work (is late, leaves early, etc.) for another reason, that does not, and may be addressed as you would any other employee absence. But if the additional time off is due to the same medical/health condition, then it would be covered by FMLA: FMLA presupposes and requires a certain amount of flexibility in the time off. 
The critical fact is, she only gets 12 weeks, or 60 days, total, off due to a medical condition in a year under FMLA. Once her 60 days are used up--whether that's by 12 weeks out of work, or 2 days out of work per week for 30 weeks, or anything in between--she is  no longer protected by FMLA and could be terminated for unauthorized absences.
2) To the extent that her absences are predictible (e.g. always Monday and Wednesday, for, say, medical treatment), she may give you the schedule in advance. If the absences are more sporadic, you can require her to phone it in the day of (or day before, when possible). You have to be reasonable, but so does she, in terms of managing the schedule; you have a right to good notice of absences.
3) You can deploy her to a different location as long as that is not a day she is out for FMLA; you retain, as the employer, full control over where she works so long as you are not punishing her for using FMLA--so you can send her elsewhere for legitimate work needs, so long as the travel time is not unreasonable.


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