Can I be written up for not calling off 30 minutes before my shift if I have ups that occur anytime?

My department policy is to call off 30 minutes prior to my shift, however I have intermittent FMLA for flare ups that can happen at anytime and I let them know as soon as I am able to but I recently received a written write up stating that I didn’t call off in the correct amount of time. I explained that I never know when I am going to have a flare up and my body doesn’t have a clock. The time missed is entered as FMLA approved absences but they said that it isn’t protected. Is this correct?

1 answer  |  asked Sep 4, 2019 8:01 PM [EST]  |  applies to West Virginia

Answers (1)

Neil Klingshirn
If time off from work is covered by the FMLA, an employer cannot terminate an employee for it, no matter what the employer calls the time off. If it does, the employer could be liable for discriminating against an employee who has taken leave or for interfering with the employee's exercise of FMLA rights. Also, an employer does not get to decide if leave time is covered by the FMLA. That is up to the courts.

Technically, a write-up for missing FMLA covered time could amount to FMLA discrimination or retaliation, but discipline that stops short of suspension or termination may not be sufficiently severe to trigger court action. If you believe that your use of intermittent leave might result in a suspension or termination, consult an employment lawyer. I recommend Walt Auvil in Parkersburg.

posted by Neil Klingshirn  |  Sep 5, 2019 06:50 AM [EST]

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