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Employer accusing me of "not" being injured while on medical leave Pennsylvania

On Lawyer & Legal » Employment & Labor Law

7,674 words with 7 Comments; publish: Fri, 13 Jul 2007 08:35:00 GMT; (800140.01, « »)

About 3 weeks ago i had to go to the emergency room - serious back pain prevented me from sitting, walking - it was horrible. At the ER they drugged me up with painkillers and muscle relaxanants and refered me to an orthopaedist.

I called into work to notify them of what happened. I took the next two days as sick days, and I had several vacation days after that which had been scheduled before my injury.

A group of athletes i had worked with earlier in the year were participating in a national championship event, and i had intended to travel in support. I considered canceling this trip, but everything had been already paid for, and my friends and partner encouraged me to go so that at least I wouldn't be alone. I spent most of the trip in the hotel in bed, was drugged up on the plane and during most of the trip, and simply attended semi final and championship matches.

When I returned home I was notified that due to 3 days of consecutive absence I had been put on medical leave and that the clock was counting down on FMLA (this after two sick days and two vacation days).

After we won the championship pictures were taken and i was in one. there was a note on a press release thanking me and several others for our participation on site and at home (my contributions were at home - i did not play, coach, or otherwise do any activity on site).

I returned home, continued all my Drs appointments, have a definitive diagnosis (after multiple Drs trips and MRIs), and am now on a course of physical therapy. As it turns out I have SI dysfuction coupled with ovarian and uterine cysts, all working together to cause me significant pain and lack of function.

I just received a letter from the human resources manager that it was "brought to their attention" that I participated in this event, and that my participation was "inconsistent with my claim of injury". They are trying to now deny me any more benefits, FMLA, etc. Can they do this? Someone had to search the internet to find that photo of me, its not like we were on TV or in the news. I know in my heart that I did nothing wrong - given my condition, I was definitely better off in a hotel with people to look after me then alone at home. Is this harassment? What is my recourse?

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  • 7 Comments
    • Its not harassment by any means.

      Its certainly correct that the leave was applied against your FMLA entitlement. Thats the law and the employer's responsibility.

      If it came to my attention that an employee called in sick claiming severe pain, then found out the person got on a plane and went to a sporting event and appeared to participate, I'd be investigating too.

      You have to admit, on the surface, it looks really bad and in my opinion, poor judgement on your part (but thats my opinion).

      Cooperate with them and show them your documentation.

      #1; Fri, 13 Jul 2007 09:38:00 GMT
    • I hadn't actually been placed on medical leave at the time of the trip. I went to the ER on Monday night, called in sick Tuesday/Wed, and had two vacation days already scheduled on Thursday and Friday. When I returned home after the weekend, I had a fed ex from HR telling me I had been placed on medical leave.

      In retrospect, I suppose it was bad judgement for me to go. But in defense, I was pretty heavily medicated for the flight itself, and at that time had no idea this was going to be a serious condition. It's one thing to fly on valium and percoset, another to actually function at the office.

      At the time if the trip, I had not yet been to see a physician - after the ER refered me it took nearly 2 weeks to get an appointment.

      The real questions I suppose are:

      Can my work put me on medical leave without me requesting it?

      Can my employer determine what I can and cannot do while on medical leave?

      #2; Sun, 15 Jul 2007 16:26:00 GMT
    • I hadn't actually been placed on medical leave at

      The real questions I suppose are:

      Can my work put me on medical leave without me requesting it?

      Can my employer determine what I can and cannot do while on medical leave?

      The employer is required by law to count as FMLA leave any leave that qualifies. So, yes, the employer can put you on FMLA leave without your requesting.

      Your doctor is the one that determines what you can and cannot do while on medical leave. The employer is perfectly within its rights to wonder why you were well enough to travel but not come to work.

      #3; Mon, 16 Jul 2007 08:56:00 GMT
    • As someone who works in HR, I must say that I understand where your employer is coming from. In my opinion, if you are travelling, attending sports events, checking in and out of hotels, etc., you are not "incapacitated." To meet the definition of a "serious health condition" per the FMLA, you must generally have experienced either an overnight stay in the hospital or a period of incapacity lasting 3+ days. There are exceptions (for example, pre-natal visits; asthma treatments), but none that I think fit your situation based on the information you've given.

      I'm not a doctor - but then again, neither are you, correct? You say that because of your "condition", you "know" you were better off travelling with others rather than resting at home alone. How do you know this? What were your doctor's instructions?

      It is the employer who designates leave as FMLA leave, not the employee (or the doctor, for that matter, although you should take his/her instructions into account). If I were your employer, based on the information you've given, I would probably not designate the days you were on vacation as FMLA leave.

      Your employer may feel as though you have defrauded them or lied to them by claiming you needed "medical leave" while you were actually on vacation. I would tread carefully here.

      #4; Fri, 13 Jul 2007 09:46:00 GMT
    • So long as you are not participating in other gainful employment what you do or do not do while on FMLA is at the descretion of your doctor not your employer. Depending on the reason for FMLA a doctor might recommend travel or other recreational activities to help in the healing process.

      Can your work place you on FMLA without your persmission? Yes and it is likely in your best interest that they do so as to protect your position and benefits. Why would you not want them to?

      #5; Sun, 15 Jul 2007 17:03:00 GMT
    • What are you trying to do? Are you seeking additional FMLA? Has the back problem resolved and you are now back to work? Have you been disciplined or fired for abusing leave? Are you alledging this back injury is WC? It isn't clear why it matters.
      #6; Mon, 16 Jul 2007 07:05:00 GMT
    • One case, Jennings v. Mid-American Energy, dealt with an employee who had intermittent FMLA leave. After telling the employer that she was experiencing a flare up of her condition, she left work early and was seen by co-workers shopping. She was threatened with termination and chose to resign instead. The court found that although she was incapable of performing the functions of her job, she was not incapable of shopping based on the medical restrictions from her doctor.

      So, the question then becomes whether getting on a plane, including standing in long lines at the airport, and going to sporting event was within the restrictions placed by your doctor when you went out of leave. I can understand why you wouldn't want to miss the trip, but if I had an employee who couldn't come to work due to back pain but could sit on an airplane, I'd be sceptical too. I have severe myofasical pain syndrome. When it's acting up, the last place on earth I want to be is sitting in coach.

      And, what "benefits" are they taking away? It's not clear.

      #7; Fri, 13 Jul 2007 09:49:00 GMT