Best Ohio Disability Discrimination Attorney Answer: Can my employer give me discipline points when I’m on FMLA leave? Can my boss give me attendance points if I ask for time off as an ADA accommodation? What can I do if I get in trouble for taking time off for a medical need? Can My Job Give Points For FMLA Leave?
Like all new law students, I had the pleasure of taking a Criminal Law and Procedure class in my first year of law school. As part of the course, we learned the various mental states (or in fancy legal Latin mens rae)are associated with different crimes. I won’t bore you with the details, but there are four different mental states recognized by the Model Penal Code. These mental states range from purposeful (meaning it was the person’s conscious object to achieve the result of their actions) to negligent (meaning the person should have been aware of the risks of their actions). The Model Penal Code also recognizes a fifth kind of offense. These offenses are referred to as “violations.” Violations are minor offenses that cannot be punished by anything except for a fine. Some common examples of violations are offenses such as speeding, loitering, and littering. In order to commit a violation, it doesn’t matter what a person’s mental state was at the time the act was committed. Instead, what matters is that they did the act. A perfect example is if you were to get a ticket for littering when you are driving with your window down, and a loose fast-food receipt flies out your window. You didn’t intend to litter; it just kind of happened. However, because littering is a violation the reason you littered doesn’t matter, all that matters is the act occurred.
I know what you are probably thinking, “I thought this blog was about employment law, why are we talking about criminal offenses?” Well, that is because many employers have adopted attendance policies similar to the “violations” in criminal law. These attendance policies are often referred to as “no-fault attendance policies.” These no-fault attendance policies give employees discipline points each time the employee is unable to come into work regardless of the reason. Under this system, an employee is subjected to different kinds of discipline when the employee reaches certain point levels. For example, if an employee has three points, he or she may get a verbal warning. If an employee has six points, he or she may get a written warning. If an employee somehow gets to nine points they may be suspended with no pay. Finally, if the employee manages to rack up 12 points, that employee may be terminated for cause. Employers like this kind of attendance system because it is simple and neutral on its face. It eliminates the need to ask employees for doctor’s notes, or for employees to have to talk to a supervisor about the reason the employee missed work. It’s as simple as miss a day, get a point. While this system may be convenient for employers it creates major issues for disabled employees and employees who are using protected leave.
Lastly, your boss, manager, or supervisor cannot retaliate against you for requesting a reasonable accommodation to help you perform the essential functions of your job- or give points for FMLA Leave. This retaliation would include disciplining an employee for the time they took off for medical treatment.
Similarly, employees with serious medical conditions may be eligible for protected leave under the Family and Medical Leave Act (“FMLA”). The FMLA allows for up to 12 weeks of protected unpaid leave to an employee so that the employee may deal with serious medical issues that either they or a close family member is suffering from. This 12-week leave can be used all at once or as needed to address medical issues that arise. When leave is sought on an as-needed basis, this is called intermittent FMLA leave. The FMLA also makes it unlawful for employers to fire, discriminate or otherwise retaliate against an employee who chooses to exercise his or her rights under the FMLA, including giving points for FMLA Leave . Importantly, when an employee returns from leave granted by the FMLA, he or she is entitled to be restored to his or her former job, or to an equivalent job with equivalent pay, benefits, and other terms of employment. Further, an employer may not discipline an employee for their absences, or time off that is covered by the employee’s FMLA leave- including points. (See. Can I Be Fired For Asking About FMLA?, My Employer Demoted Me Because I Took FMLA Leave!, Can My Boss Stop Me From Taking Medical Leave Under The FMLA?, and My Employer Demoted Me Because I Took FMLA Leave! I Need The Best FMLA Retaliation Lawyer In Ohio!).
As our employment discrimination lawyers have blogged before, all employees are protected under the Americans with Disabilities Act (“ADA”) and Ohio’s R.C. § 4112.02(A) from being discriminated against by their employers on the basis of their actual or perceived disability. This includes protections from being terminated, being paid less, being demoted, being denied a promotion, and being treated differently than any other similarly situated non-disabled employee. (See My Job Is Discriminates Against Me Because I’m Disabled!; Top Disability Discrimination Lawyer: Is It Disability Discrimination If My Job Will Not Accommodate My Anti-Social Disorder?; and Is It Wrongful Termination To Fire Disabled Workers?).
These anti-discrimination laws also prohibit employers from making pre-employment, disability-related inquiries of job applicants. Additionally, the ADA requires employers to provide reasonable accommodations to employees who, either with or without such accommodations, are qualified to “perform the essential functions of the employment position.” (See How Do I Get A Disability Accommodation For My Job?; Can A Service Dog Be A Disability Accommodation At My Job?; and Does My Job Have To Accommodate My Paralysis?).
Relevant to today’s blog, time off for medical treatment is often seen as a reasonable accommodation under the ADA. (See. Can A Schedule Change Be An ADA Accommodation? Does My Job Have To Give Me Time Off For Cancer Treatments? I Need The Top Disability Discrimination Lawyer And Best Wrongful Termination Attorney In Ohio! and, What Should I Do If My Boss Fires Me For Getting Regular Medical Treatment For My Disability? I Need The Best Disability Lawyer.)
Recently, an employer found out the hard way that applying a blanket no-fault attendance policy violates an employee’s rights under both the ADA and the FMLA. In a recent lawsuit, a quality auditor who worked at American Woodmark Corporation, a wood cabinetry manufacturer, claimed that the company violated federal law when it denied the employee a reasonable accommodation of two days time off for medical treatment, for her epilepsy, migraines, and heart condition. This was also submitted as a request for intermittent FMLA leave. As if denying the reasonable accommodation/FMLA request wasn’t bad enough, the employee’s complaint alleged that instead of agreeing to the employee’s request for two days of unpaid leave, the evil employer gave the employee discipline points under its no-fault attendance policy. American Woodmark then fired the disabled employee for going over the number of attendance points allowed. To make matters worse, the employee had even provided a doctor’s note and updated FMLA forms to prove that the employee was using the time off for the purposes of medical treatment and recovery connected with her disabilities.
The disabled employee’s case has not yet gone to trial. Given the employee’s strong position it would be surprising if American Woodmark decides to fight it out in front of a jury.
If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our office at 866-797-6040. Spitz, The Employee’s Law Firm, and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.
This employment law website is an advertisement. The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave from work under the FMLA?”, “what should I do when my boss won’t give me FMLA leave?”, “can the company that I work for deny me medical leave?”, “can I sue for wrongful termination if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to punish me for using intermittent FMLA?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.