FMLA, Florida, and warning for performance

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FMLA, Florida, and warning for performance

Post  makeshift15 on Sat Sep 20, 2008 4:44 am

I have been on intermittent FMLA leave for appointments only and it is whenever I have a flair up I need medical attention. My actual diagnosis is not yet determined and needs multiple tests to rule out cancer, lupus, ms originally it was believed to just be blood pressure w/ memory loss however after being on blood pressure medicine for almost a year memory loss is worse, and so is cognitive dysfunction.

My employer has been really good about making sure my time is noted as FMLA and has not been given me a hard time about being off. Something strange happened today though.

Every time I am out my "daily tasks" become behind. For example everyday on the computer you have a diary of so many tasks that need to be done. I have been extremely good at my daily tasks. Whenever I am out and I miss time, my tasks become behind. So if I miss one day the next day I come in I might have 20 tasks to do. Sometimes other people can add tasks to your daily list usually about ten so then you have 30 due and since it is incoming calls, sometimes it is physically impossible to get all your tasks done. A lot of members who have FMLA were given a warning today about their daily tasks being behind. We have 6 days to catch it up and you can minus the weekend so its 4 days to catch it up or we're being put on an improvement plan.

I guess another easy way to describe it is if at your work you have to follow up with ten people per day, but you missed a day because of approved FMLA those tasks are behind and held against your performance numbers.

Can this be held against me? Suggestions advice? This is the second time this has happened to me, the first time it was over other "numbers" on our score cards which after I wrote a complaint letter it was taken seriously and they worked with me to remove it. I will write another complaint letter if it goes to the depth of an improvement plan to the shareholders, ceo, and subsidiaries a second time. I want to be educated and know my rights because FMLA wording is very bland and only specific on absences.

I kind of feel like it is more of an antagonizing method to get some of us so frustrated that we'll walk out or quit. On top of my condition this is just adding more stress which is not going to help my condition and now I have been given an anti-biotic that I have had severe effects from in the past (severe mood swing and temp mood disorder from the medication) but I don't have much choice but to take it all the way through because my life may depend on it.


Some more details and sorry for the long post

The first time they tried to put me on a warning because something unethical was forced upon my job duties and I had found already in one northern state my company was sued for the unethical behavior by the state attorney general, who is still seeking any employees of said company to come forward if the behavior continues. I work for a big company and we're in all US states. I invoked protection under the whistle blowing act that I would go public and ask for the government to subpoena records at my employers expense because I felt my "written warning" the first time was because I flat out refused to be involved in an unethical practice and I happened to be on FMLA as well. My employer quickly withdrew my written warning and apologized and I had a chance to meet with upper management who also apologized.

Now this time, it's for not meeting "job expectations" (the quota of work)when I am not there. My boss told me if I am not able to be there everyday then I need to work harder than most people, even if time off is for FMLA purposes. (Which I compared to this, if someone is handicapped with one arm, would you legally and ethically expect them to type the same amount as someone with two arms? so why do I have to work harder than anyone else?)

The funny thing is this; everyone who is on FMLA received the same exact warning! So only FMLA people got it. Kind of strange? And my boss said if I was out for 3 days or I was out on Vacation for a week they would put my quotas on hold, but they wont do it for FMLA 1 day, or day and a half, or FMLA 2 days.

I looked further into my situation: Apparently my condition could possibly be a permanent impairment. I am experiencing memory loss, cognitive dysfunction, hard time walking, its very hard to breathe sometimes and I am on a lot of medications until they can figure out what this is. It is very possible I may have some type of silica infection from 2002 that is just surfacing severely now, which happened from a different employer altogether, and documented by their workers comp company. A university hospital actually found silica samples in my nasal cavity and they found a very small amount of silica in my lungs and OSHA was not sure what the long term effects were in 2002 except they sent me a letter stating that I was exposed to a carcinogen called silica which was considered a level 2. Upon calling the bureau of workers compensation to get my claim reactivated I had found that per their knowledge most symptoms now occur 5-6 years later. I was exposed to massive amounts of silica in a 4 month period of time which required 2 ER visits with oxygen. Lifetime prescription of nasonex, and advair which I did not know my former employer wc company is still responsible to pay for.

I checked with ADA and if I request ADA protection also then my employer would have to make "reasonable accommodations" such as easily as putting my code on hold so I won't be expected to do my quotas for the days I am out on FMLA, I looked even further and since I wrote a (certified, delivery confirmation) letter requesting whistle blowing act protection against the unethical behavior I am protected against unfair retaliation from my employer on "constructive criticisms" under the Civil Rights Amendment. The Civil Rights Amendment per the EEOC argues that warnings even years following a whistle blowing notification can be cause enough to prove an employers illegal intent.

So there is actually possibly several violations:
Attack on FMLA eligible employees (7 total that I know of received the same warning as me),
Protection under Civil Rights Amendment for blowing the whistle to the head of the company, shareholders, subsidiaries and affiliates
ADA violations if any of the FMLA employees meet ADA qualifications

and someone else recently suggested that I talk to 3 of the FMLA warned employees and proceed with a class action lawsuit, which I am holding off on right now. I am just watching everything my employer does and seeing who benefits from what because in my next series of letters if it comes to it I am going to ask they be held accountable for their actions individually as well as corporately.


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Re: FMLA, Florida, and warning for performance

Post  JoeC (McGruff) on Tue Sep 23, 2008 2:45 pm

Contact an attorney I see some violations of the F.M.L.A ,as well as the A.D.A. The employer has to engage in the interactive proses under the A.D.A which they did then the new manager did not. Also under the F.M.L.A they cant make you do missed work on top of your regular work,then penalize you for not doing the work that was or should have been done while on F.M.L. If there are several aggrieved employees this could give rise to a class action.
JoeC (McGruff)

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