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Employer requesting that I take FMLA when I am not sick

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#1 charloco


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Posted 18 October 2012 - 06:26 AM

I have worked for the state government for the past 17 years in a clerical/socialworker type position . I have been able to perform all my assigned duties with the exception of driving a 15 passenger van for duties that are not consistent and are not a part of my job description. I have a valid drivers license and have no problems operating a sedan. Because of medical problems related to degenerative disc cisease, my dr. has recommended that I not drive the van and I have complied. My dr. signed off on a form provided by my employer entitled Fundemental Job Duties stating that I am able to perform all my duties with the exception of driving the van and I provided the employer with the completed form. Last week a supervisor told me to leave office immediately until I was able to drive the van. He further stated that I was being placed on leave because I had no other duties. He then sent forms to me per certified mail that I apply for Family Medical Leave. I have told the agency that I am not sick, do all my job duties, and do not want or need to apply for FMLA. I have a recording of the session with the supervisor when he laid me off stating that I am being laid off because I have no other duties. I wish to start drawing my unemployment but I am afraid to sign up. Can anyone help me?

#2 Guest_FindLaw_Amir_*

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Posted 18 October 2012 - 01:12 PM

Why are you afraid to sign up for unemployment?

#3 Fallen


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Posted 18 October 2012 - 02:25 PM

"I have been able to perform all my assigned duties with the exception of driving a 15 passenger van for duties that are not consistent and are not a part of my job description."

Can't know what the civil service regs or union contract may say about your job description, but in private industry, your job is whatever folks say it is.

It's unclear why a sedan would be fine but a van not. At any rate, if that's true, can't know if the employer entered into a discussion about not driving the van being a reasonable accommodation under the ADA. If they didn't, you may file a complaint with the EEOC and state equivalent. Sounds like it's time to go over supervisor's head to the personnel folks, yes?

You aren't obligated to file for FMLA if you're not sick, so you can file a complaint with the federal DOL about that.

"I wish to start drawing my unemployment but I am afraid to sign up."

It's not clear why you'd be afraid to file for unemployment if you've been told you're "laid off" (though unless you work in the personnel department, if you're a state worker, I should think that would come from someone above your supervisor's head. I'd be contacting personnel, since you have no idea whether your supervisor would be telling folks you quit.

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)

#4 charloco


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Posted 21 October 2012 - 10:28 AM

I guess I used the wrong word in saying I was "afraid to sign up" for unemployment. Initially, when I went to the unemployment insurance office and I started filing my request for unemployment benefits, I didn't know what to put as to why I was laid off...I didn't want to get charged with fraud. So after thinking about it, I filed and showed "medical" for the reason the employer laid me off. Looks like this would places the burdon on proof on my employer since I did not wish or ask to be laid off. I was doing all my other duties just fine. I received a satisfactory job performance evaluation not much over a month ago. When was laid off, my supervisor told me that he, and two other supervisors above him decided that, since I could not drive the van, then I could not do my job and they were going to allow me to apply for FMLA until I got able to come back to work...I don't have any income and need my job.....I did not request and do not need to apply for FMLA....I simply asked for reasonable accomodations....

The question about the difference in the 15 passenger van and a sedan involves, when I get up into the drivers seat of the van, (the van is very high off the ground and has a step but, I have to pull myself up into the seat by a handle....this aggravates my condition and I have to sit for long periods of time. I am required to put the van, which is loaded with parole and probationers doing litter crew duty out on the highway, according to my supervisor, the interstate highway.. I have to be very careful to make passengers are safe. The van is very hard to handle when the wind in blowing. For the past 17 years,I have utilized ample county and state and non profit worksites for the purpose of community service work. These organizations and agencies have been proud to utilize court/parole board ordered adult community service workers for all these years......The state government agency for which I work, ( my area, especially) has not had to spend one dime for custodial and vehicular cleanup since I have been working there..... I have assigned hundreds of workers and some of these folks have gotten jobs from my assignments.... My efforts have save the tax payers a great deal of money by utilizing this resource. Now...it's the highway or no way...Hope I am makeing myself clear...I'm still quite rattled!!!

#5 d547183


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Posted 14 November 2012 - 01:50 AM

I would contact the EEOC office in your state and file a complaint

#6 charloco


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Posted 24 November 2012 - 06:23 PM

I have done that and am awaiting a response....I wonder how long that will take...I submitted my complaint on 10/18/2012...I called EEOC a couple of weeks ago...they acknowledged receiving my complaint and advised that I would be hearing from them. As of yet, nothing...thankfully, I was approved for UI

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