Salinas, CA asked in Employment Law and Workers' Compensation for California

Q: regarding FMLA.. my employer is saying I'm on the FMLA abuse list one day. because i went over the certified hours

I went over the hours the doctor certified me with... but all the times my supervisor had approved my time off but one day my manager tells me that I'm on the FMLA abuse list cause i went over my hours. they didn't even ask me if i can provide doctors notes for the days I left early which i can get..But my question is can I be on the Abuse List even though it was approved prior of this happening and didn't give me a chance to provide me a doctors note

2 Lawyer Answers
Neil Pedersen
Neil Pedersen
  • Westminster, CA
  • Licensed in California

A: There is nothing in the FMLA that talks about an FMLA Abuse List. That is an internal thing at your employer. I would surmise that what you are being told is that your employer suspects that you have taken FMLA-designated time off that it believes you were not entitled to receive. If you believe that your time off is all related to your medical condition or disability, provide the employer with medical notes to justify each time you take time off.

The employer's problem is that the FMLA is not the only statutory protection you have allowing you time off to address a medical condition or disability. In California the Fair Employment and Housing Act provides far broader protection requiring an employer to provide you with reasonable accommodations to address your condition, and there is no hard and fast number of days or hours that you can exceed. As long as the need is related to your condition, you provide the employer with medical documentation of that need for leave, and granting the leave would not create an undue hardship on the employer, any employer of five or more employees must provide you with an accommodation.

Finally, you say they did not give you a chance to give them a doctor's note. Just submit it to HR - do not wait for them to ask for it.

Good luck to you.

Nancy J. Wallace
Nancy J. Wallace
  • Workers' Compensation Lawyer
  • Grand Terrace, CA
  • Licensed in California

A: There is no such animal in the Labor Code as an FMLA Abuse List.

That is an internal bookkeeping tool that employer just made up.

Workers us FMLA up to a certain amount, and when all those hours are used up, the employer may reprimand then terminate the worker for absenteeism.

All FMLA does is protect your job while you are absent. When you are absent beyond the number of days in the statute, the boss can fire you.

When an employer makes up a tool like an FMLA Abuse List, it certainly sounds like this employer is getting ready to terminate you. It sounds like this employer is no longer happy with the relationship and wants to find a reason to terminate you and is putting your absenteeism in writing. One more day off, you will likely be gone.

SO: INSTEAD of waiting for this unhappy employer to fire you, it is a really smart time to go find a new job. A lot of employers are having a tough time finding good people to show up and work. This is a great time to look for a new job, while you are still employed and other employers need help.

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