cancer screening

I recently requested FMLA (at my HR reps recommendation specifically)to get my 6 month cancer screening which was at that point 2 months overdo because of a mandated overtime program we have at work where we can be forced to work unlimited overtime. We have been getting mandated for overtime for 5 months now and no end in sight. I canceled 3 appointments for my regular screening because of the exorbitant overtime schedule. I took this to HR and explained to him my predicament. He agreed with me. I brought my forms back signed but filled out the questions wrong. He stated that I did not have a serious health condition "in his opinion" and wrote me up for an unexcused absence. I was not given a chance to correct any mistakes on the form and he "changed his tune" on the claim that I had a valid right to FMLA for my screening to by-pass the mandated overtime schedule. Do I have a legitimate grievance here or is HR in the right on this? He said I had a legit FMLA claim for my cancer screening but changed his mind after I brought the form back stating since I did not have " a serious health condition" he denied my FMLA request and gave me a write-up (disciplinary action). I have had perfect attendance for 3 years and do not make a habit of doing things like this. I am very conscientious about my cancer screenings because of the vast history of it in my family (two parents dead because of it and all four grandparents are survivors).

I am open to being contacted by an employment lawyer if needs be.

1 answer  |  asked Feb 21, 2011 06:21 AM [EST]  |  applies to New York

Answers (1)

Jim Barna
I appreciate your inquiry regarding this issue.

The Family & Medical Leave Act works in a fairly formulaic manner. The facts of the given leave situation are plugged into the requirements of the statute and regulations, and a determination is made whether a leave request is covered by the statute or not. A leave is only covered by the statute if it involves a “serious health condition.” A “serious health condition” is defined under the statute as an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider. FMLA Section 101(11). The DOL's regulations further provide that "continuing treatment by a health care provider" must include either (1) a period of incapacity lasting more than three consecutive calendar days and treatment two or more times by a health care provider, or (2) treatment by a health care provider on one occasion resulting in a regimen of continuing treatment under the provider's supervision (see App. II, 29 C.F.R. § 825.114(a)(2)(i)).

Generally, preventative screening is not be considered a serious health condition under the statute. However, if your periodic cancer screening was because of a prior diagnosis of cancer than it could be a serious health condition under the “continuing treatment” criterion.

Regarding the specific FMLA form, and your discipline, you can request that the form be amended by your health care provider, which could undo the discipline. Or if you are a union member, you could file a grievance because of this situation.

posted by Jim Barna  |  Mar 2, 2011 08:21 AM [EST]

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