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written up while on FMLA

Last November an employees FMLA request was approved with stipulations stating she can take up to 4 days in 1 week off due to FMLA for her 5 year old son. She exhausted her one week of personal time, 3 days were used for FMLA for her son and 2 days were used due to other reasons. Her manager has told her on 3 different occasions that she needs to be careful because she is out of personal time. What is the purpose of filing FMLA if the manager/employer is still making comments that she has no time left and needs to be careful when taking days off even when using FMLA time? If this employee calls in to work using FMLA for her son can she still be fired or written up even while on FMLA?

An employee who is on FMLA can be written up for performance issues or other reasons. But, she cannot be disciplined for taking approved FMLA leave. That would negate the whole purpose of FMLA. The federal Family and Medical Leave Act is in place to permit employees to take time off when an immediate family member (including a son or daughter) has a serious health condition. This employee has gone through the process to certify that condition, and must be permitted to take up to 4 days per week off, unpaid. The employee is entitled to use FMLA leave until she has taken the equivilant of 12 weeks of leave, in a 12 month period.

It is possible that the supervisor in this case isn’t aware of the employees FMLA leave, or has forgotten it. It is also possible that the FMLA certification has lapsed, and that the serious health condition needs to be recertified, in order for the employee to take such leave. Teh supervisor may be warning the employee that any additional FMLA time will be unpaid. Or, the supervisor may believe that the employee is taking time off for other reasons, not related to the FMLA. If that were true, the employee could legitimately be disciplined.

The best course here is for the supervisor, HR person and employee to all sit down and have a conversation about the FMLA leave. The employee seems to believe that she can take up to 4 days per week off indefinitely until her FMLA is used up. The supervisor seems to think that it was a one-time occurrance. This needs to be clarified, for everyones benefit.

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This entry was posted on Monday, August 4th, 2008 at 8:46 am and is filed under
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5 Responses to “written up while on FMLA”

  1. FMLA law Family Medical Leave Act update, Latest cases on FMLA Law : FMLA Law News Update August 5 Says:

    [...] written up while on FMLA By Rachel An employee who is on FMLA can be written up for performance issues or other reasons. But, she cannot be disciplined for taking approved FMLA leave. That would negate the whole purpose of FMLA. The federal Family and Medical Leave Act … Human Resource Blog – [...]

  2. T Says:

    My doctor place me on FMLA. before placing me on FMLA he had me go to many doctors appointments before receiving a diagnoses. Can my job write me up, If the doctors stated that i was under his care the entire time I miss from work do to doctors visits?

  3. Caitlin Says:

    Hi T! You are entitled to FMLA for doctors appointments when you have a serious health condition. However, you should have informed your employer at the time that you were taking the time off due to a serious illness. (You do not have to specify the diagnosis to qualify for FMLA.) Usually, a doctor cannot retroactively designate time as FMLA.

    However, there is a loophole here. Your employer is required to furnish you with FMLA forms within 5 business days of any absence that could be for FMLA. If the employer does not inform you of FMLA, they are in violation of the law and depriving you of your rights under FMLA. If your employer did not give you the FMLA forms after each of your doctors appointments, they are probably in violation of the law and you can report them to the US Department of Labor, which enforces FMLA. HTH, and thanks for reading the blogs!~ Caitlin

  4. T Says:

    The paper work I received from my HR rep stated that I must have a diagnosis before i can be approved for FMLA. After running many test and being diagnose weeks later my job refuse to remove write ups even after my doctor stated that my miss days were do to having cancer.If the FMLA forms from doctor state that I was under his care can my employer keep the write ups for days miss do to illness?

  5. Caitlin Says:

    Hi T! Without knowing more about the situation, it sounds like you should have been on FMLA from the start. An employer cannot discipline you for an absence that is covered by FMLA — but a doctors note is different from FMLA.

    We suggest that you contact the US Department of Labor at and file a complaint against the employer. It is possible to have a serious health condition without a definite diagnosis. HTH,and thanks for reading the blogs!~ Caitlin

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