This is as asinine as it gets. My mother has stage 4 cancer and I'm her primary caretaker. I went through the proper steps, to my knowledge, and got FMLA leave to cover my butt while I took intermittent leave. However, there were a few times where I clocked out 3-5 minutes too early (leave was starting at 2 pm and I clocked out at 1:55 pm) and I got punished according to the company's policies.

Then, at the beginning of the COVID-19 and everything starting to shut down, I felt sick and called in out of fear of possibly spreading it (was actually a 24-hour bug and unlucky timing). Since I didn't have any PTO (spending most of it to care for my mom), I got dinged again. This was supposed to lead to a written warning AND my termination (termination due to racking up 5 verbal and written warnings, only one of which I was actually informed of and signed).

My boss today handed me a Last Chance Agreement to sign so that they don't have to replace me. (Plant is shutting down and I play a somewhat integral part to it. Replacing and training would be a bitch and a half for them.)

My boss informed me that the FMLA didn't matter since I clocked out outside of the actual leave time, at least according to their boss and corporate HR. Something doesn't smell right as I thought FMLA protects employees from this kind of punishment. I mean, I'd understand if I left unannounced an hour before I was supposed to, but we're talking minutes here and my boss was well aware that I was leaving. They didn't even know that what I'd done was against the rules so I'm getting shafted for ignorance/poor training on my superiors' parts.

Is there anything within FMLA that protects me or am I SOL? I haven't signed anything because part of the document stated that I was aware of my attendance situation and that I had received too many warnings (I did not receive them so I was not aware), plus there was some NDA language and that threw another red flag.

  • 15
    Sounds like it's time to talk to an employment law attorney before you sign anything.
    – Booga Roo
    May 5 '20 at 3:30
  • 3
    DO NOT SIGN! See above comment. Making sure others who see this question know. Secondly, before putting in for FMLA, best to talk to a lawyer. There are those whose initial consult is free. Lastly, all communication regarding this matter please put in writing, and try to limit it to "I will let be seeking legal counsel before signing". Discuss this matter as little as possible. The reason that there is a chance a file is already being built to deny your FMLA and terminate your employment, with cause. There is a law stack exchange if you want to peruse FMLA there.
    – paulj
    May 5 '20 at 13:39
  • 1
    Well, now it has a bounty. Are there any updates? The correct answer is probably still talk to a lawyer unless this magically solves itself. Jun 18 '20 at 22:11
  • 1
    Wow, that seems horrible: You have to go to work (because you are not alowed to stay at home anymore) even though you might be COVID-sick? Which country is this? Is it legal for a possible covid person to go to work in your country?
    – guest
    Jun 19 '20 at 10:26
  • 2
    Hello all, I forgot about this question as life had gotten crazy (pandemics amiright?) I'll edit the question or maybe answer with an update.
    – Throwaway
    Jun 19 '20 at 23:05

OP here. Basically I spoke with a lawyer while I waited for my boss to access my file in the HR office (fun side note: we didn't really have local HR for the latter half of 2019 and the new rep had been traveling back and forth until the pandemic caused lock downs.) to see if I actually received the verbal/written warnings.

The lawyer said that there wasn't anything I could really do and that I should agree to sign the Last Chance Agreement, but note that I hadn't received the warnings. Then if I was terminated, I could follow the unemployment process and file my grievance. My case would be stronger after getting fired. Especially since the employee handbook specifically states that an employee who's received 5 instances of verbal/written warnings or suspensions are to be terminated and their definition of "received" is the employee signing the document. Since I signed only one warning and wasn't present for the other four, I could cry foul.

My boss never got back to me so I haven't signed anything. I'm getting laid off in August so there's light at the end of the tunnel.

  • Why the downvote?
    – guest
    Jun 20 '20 at 9:44
  • 2
    That's how some people do.
    – Throwaway
    Jun 21 '20 at 13:35

From what I understand, when using FMLA time away you would need to follow the agreement arranged between you and your employer, which in this case seems to be that you would leave at 2:00PM to care for your mother. (https://www.dol.gov/agencies/whd/fact-sheets/28-fmla)

However, FMLA seems to protect you for up to 26 weeks of job protection as a caregiver (https://www.dol.gov/agencies/whd/fmla/faq). Assuming that you were not being paid, or utilized accrued paid sick leave starting at 1:55pm, then I don't see why this should be an issue with your employer. If you had not clocked out and were attempting to game the system then I could see where they may have a case.

If you were provided a copy of the final notice they've requested you sign, I would take that along with any records you have of the FMLA paperwork you originally filled out and your timesheets to be reviewed by a labor attorney. By trying to coax you into signing an agreement your employer may be in some hot water based on what you have stated. They may rethink their position if an attorney sends a letter asking for additional information as employers generally do not like to be in hot water over FMLA issues.

I am not an FMLA attorney or an attorney at all for that matter, just someone who has utilized FMLA benefits.

  • Yeah, that's the thing. I read the employee handbook and it really sounds like they want to fire their employees... By clocking out early I actually saved them some money since I was no longer getting paid and without shafting the company.
    – Throwaway
    Jun 19 '20 at 23:13

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