I think they're trying to get rid of my mom!

[2Curious]

What is the name of your state (only U.S. law)? KS

My mother is in her late 50's and works for the VA Hospital and has for 10 plus years. She has arthitis in her knees (painful bone spurs) that has gotten to the point that a cane is needed at times to get up and down stairs and knee replacement surgeries are scheduled. She's OK walking (pace not as quick as it used to be) but stairs can take awhile. She has a total knee replacement scheduled for later this month and has a plan with her doctor to get the other one taken care or sometime 6-12 mos after this one. She applied for FMLA time so that she could recover and it was granted eventhough she was given somewhat of a hard time. Since then they have brought her in to tell her that if she wants to have the 2nd surgery they do not have to hold her job and with a little bit over 2 weeks before her surgery they have told her not to come back to work. She has been using her sick time and her supervisor is trying to get her to sign a paper saying that she physically cannot do the job which isn't the case. She has refused to do so and feels that they are trying to get rid of her and fill her position. Any advice on how to approach this for a longtime gov't employee who hasn't had any write-ups or other disciplinary issues while employed?

 

[pattytx]

How much FMLA time has she taken so far?

 

[2Curious]

Has never taken any FMLA time.

 

[ecmst12]

That is the opposite of what you said in your original post.

 

[2Curious]

Let me clarify:

• Total knee replacement surgery is scheduled for later this month (Oct 24th)
• FMLA time was applied for and granted to start after the Oct surgery
• No FMLA time has ever been taken
• Supervisor gave her difficult time about taking the time off and was instructed job could possibly not be held after second surgery
• Was instructed to not come back to work (earlier this week) and asked to sign their letter stating she couldn't preform her job

 

[cbg]

Let me ask the question in another way:

In the last 12 months, how much if any time off for medical reasons has she taken, regardless of whether it was classified as FMLA or not?

 

[2Curious]

I believe there was an episode of gout that sidelined her for a week or so. There has been time taken off due to sickness (sinus infections, etc) but unsure the the exact amount of time off. She has not exhaust her sick days so I'm assuming that the time off is not that to warrant disciplinary action.

 

[cbg]

It is possible that internally, that time off for the gout has been attributed to FMLA - if she, the employer, and the condition all qualify and the employer knows it, they are required by law to apply FMLA protections whether she asks for it or not. Although there are some conditions when it can later be re-defined as not FMLA, this does not appear to be one of those cases. While they should have notified her, the regulations on that have eased somewhat as long as she gets all the time the law requires.

However, even that would still leave her with 11 weeks of FMLA. If she is out for less time than that and they do not hold her job for her (note that they ARE allowed to temporarily fill it while she is out as long as she is returned to either her own job or one that is equivalent in all respects), then she can file a complaint with the US DOL. Unless she receives formal notice of termination, however, they have not violated the law until she tries to return to work and is told that she can't. If she does receive formal notice of termination, she should file the complaint with the US DOL immediately.

 

[commentator]

The HR office of this facility, and I'm sure they have one, should be more help to this lady. At least, I hope she is taking her questions and issues to HR, not simply trusting what her immediate supervisor is telling her. She needs to ask HR very specificially about the FMLA situation, remind them that she has asked, find out if the past sicknesses were considered FMLA related. Asking the supervisor and then having them supposedly ask HR is like playing that old game of "Gossip" sometimes. Things get very muddled.

Federal employers, unless she is a contract employee of this facility, are held to quite a high standard for dealing with all these issues, usually more on top of it than private employers. Does she have a union, or employees association she is a member of? If so, they will be able to provide her with information, even representation in this circumstance.

But when you say that her supervisor has been trying to get her to sign something saying she can't do the job, are you saying they are trying to get her to go home now before the surgery because she can't do the job right now or trying to say that she will not come back after the surgery and she is released by her doctor?

Something about if she has the other knee done she will not have enough time left on FMLA for it, and they can terminate her? Is that what I'm hearing here? If so, is that true, cbg? What about how much time one can take off for a specific episode of illness? And is one knee, and then the other knee considered both the same episode, or are they considered separate issues for FMLA. In other words, could she wait till next year or something, and then have the other knee done and it be covered by FMLA? Inquiring minds want to know!

 

[cbg]

An employee gets a total of 12 weeks per 12 month period. There is no specification as to how it gets broken up per occurrance. It can be 12 weeks for one, 2 weeks each for 6, 8 weeks for one and four weeks for another, it doesn't matter. When the employee has had a total of 12 weeks, regardless of how many individual illnesses/injuries, that's the ball game.

The 12 month period can be counted in a number of different ways. It can be calendar year. It can be fiscal year. It can be a rolling year rolling a couple of different ways. The company gets to pick which one. But they can't pick and choose; they have to pick one and stick to it. If they do not specify which way they count it, then the method that is most advantageous to the employee gets used. Most companies use some form of rolling year.

If it is medically possible, and if it would keep her within protected time, doing one knee this year (however the year is counted) and the other knee next year would be a viable solution.

 

[commentator]

Thanks!

That's kind of what I was thinking. By all means, this lady should ask HR about the amount of sick leave she can use this year,and when the year changes for FMLA purposes at this institution. As I said, usually the federal facilities will have this very well set up and made into concrete policies. (The beauty of working for the government!)

Her supervisor may well NOT have her best interests at heart and may be encouraging her to just give it up and go home, thus easing the supervisory job of this particular person. What she must do is hang on in there. Do not sign anything agreeing she can't do the job. Do not agree to "resign instead of being terminated so it will look better on your record" or some such garbage as that. Especially being over 40, with a health related issue in a federal facility, she has quite a bit of protection against being treated unfairly, IF she keeps her information coming in correctly and gets her ducks in a row, so to speak.

But it sounds to me like she could, since she's not having both knees done at the same time anyway, postpone the other one till she's going to be able to protect her job and still have it done.