Time off and fmla

neveradull

I have a FMLA qualified pregnant employee who has submitted the required certification to be off on FMLA the certifcation date is September 1. She states that she is going to take time off beginning July 16th and for 12 weeks following the birth. (there is no medical justification for this extra time) She has used all sick and vacation time but wants leave without pay. I have concerns: 1. about allowing this and setting precedent.
2. if allowed she would qualify for cobra, but starting September 1,would we then have to again pay benefits for her 12 weeks of FMLA.
3. if her demand is not granted would this be considered a voluntary termination, are there any discrimination/retaliation concerns.
4. Anything I am missing? I know Washington State has maternity leave.
I expect that I will have to consult and pay our attorney on this one, but would really appreciate your thoughts. I just hate it when an employee says they know the law and we must meet their demands.

Lola815

I might be totally wrong (I hate FMLA and have only had to deal with it a few times where I work) but if I were you I would only allow the 12 weeks FMLA time unless she had a doctor's note saying she needs more time off.

We have an employee out on FMLA leave right now for the birth of her baby. She left on her leave a month before her baby was due. Her doctor provided the note saying she needed bed rest, which I know wasn't true because this girl told me that she didn't need it, but she begged her doctor for the note. Well, she had her baby C-section and she is saying that she is going to need a total of 14 weeks, because she needs extra time to recover. We told her as long as she has a doctor's not saying she needs those extra two weeks she could have it, but no note, no extra weeks.

Crout

[font size="1" color="#FF0000"]LAST EDITED ON 07-10-03 AT 02:39PM (CST)[/font][p]Find out what Washington State says about maternity leave. If the State law exceeds FMLA, then the State law would apply. Then dovetail that with your company policy. Be mindful of what you've done in the past for people requesting leave. So, if I'm reading you corrently, she wants a leave NOW, then start her FMLA leave on Sept. 1??? Again, unles you guys have done this in the past because of policy or precedent, and/or unless the state says differently, you are under no obligation to give her more than 12 weeks leave.

neveradull

That is part of my dilema, in the past we have allowed time off without pay for good reason. However, in this case there is no reason for her time off except she says "I am going to to take the time off and my attorney says you have to". (I just love all employees that apparently keep a personal attorney on retainer) Her physician is certifying Sept 1, for FMLA and not before. My understanding of FMLA is that we provide the same benefits in effect at the time of FMLA. If we grant the leave without pay at time of FMLA she would have no benefits as she would go from LWOP straight to FMLA without having worked any days. We do offer STD after two weeks but as I see it 66 2/3% of nothing is nothing as she will not have worked at all in the previous 6 weeks. Part of me would like to tell her that she is "nuttier then a fruit cake", good bye. But I don't want to go there because of ADA. Can a HR Director suspend himself for thirty days with pay? I'm ready to try!

bbarrett

I would only grant the extra time off for a legitimate reason (Dr’s Note). No matter what her lawyer says you do not have to give her anything except 12 weeks FMLA and that starts Sept. 1. So she wants an additional 1.5 months unpaid. I would not mention the STD that is another monster you do not want to have to fight.

awilliams

Dear Neveradull, (and oh, how appropriate that name is)

It sounds like you have quite a pickle there. In my research on FMLA I am quite confident that you only have to allow FMLA leave for the time that the medical certificate specifies. If this woman has not been able to convince her doctor that sne needs medical leave before September 1, then you have no obligation to give her any leave before then. However, when you are dealing with pregnancies, things can change overnight - and she may develop a condition that requires FMLA leave prior to September 1st, so be aware of that.

As far as offering her unpaid leave from now until 9/1, you are correct to look at the circumstances of when you have allowed that leave in the past for other employees. It seems to me that you are correct, though, that if she goes on unpaid leave and isn't working when STD or FMLA kick in, you are not liable to continue her benefits. You will have to give her the COBRA notice as soon as she goes on leave, though.

From an employer standpoint, you can refuse to give her the unpaid time off prior to her FMLA eligibility. It sounds like she might be leaning towards staying at home with the baby so she doesn't care about FMLA leave - she just may not want to reveal that yet.

From the employee standpoint, you probably have nothing to lose by giving her unpaid time off prior to FMLA. I became pregnant with my son a mere month after I started a new job for the state of Illinois. I was not eligible for ANY kind of leave, not to mention FMLA. However, they worked with me, gave me 6 weeks off before the baby for bedrest and 4 months after. I came back to work with a fresh perspective of how flexible they were, and worked my proverbial a$$ off - including tying a federal jury trial the second month I was back at work. I really appreciated that they valued me enough to give me what I needed, and therefore I wanted to show my loyalty once I returned.

Before I get carried away on my soapbox here, I just want to remind you that what the law REQUIRES and what you can do are two different things. Yes, you want to make sure that you treat your employees fairly, but if this is a long-term employee, and a good worker, you may want to cut her some slack. (I'm off the soapbox now, but DonD, there is room to join me here.)

Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC

Crout

While I agree with Ms. Williams in principle, I must say that this particular employee seems to have the proverbial "attitude," and may not deserve such consideration. HOWEVER, you did state that you have allowed this kind of leave in the past "for good reason." What were those reasons? Would a reasonable person see a pregnancy as "a good reason" to request leave? Also, keep in mind that you have the right to designate the extra leave as FMLA. In other words, tell her that she can have the time off, but that the FMLA clock starts as soon as she goes on leave.

Pork

Without written justification by her physician she would be expected to be at work unless we choose to accomodate her personal request for additional time off, which if we did that, at her request, I would so designate this additional time off as FMLA. With a "C" section in our comapny she is entitled to 8 weeks with pay after which she has got to pay the premium for the medical insurance to stay enforce for the additional period. She must be back to work by the end of the 12 weeks or she is declared medically disqualified by her physician and thus terminated. Is the JULY 16th date a single date or has the doctor started her 12 weeks FMLA period on the 16th? If so it appears that she must return by October 9th or her protection under FMLA is finished!!!

My OINKY outlook on this situation, tell her to eat more Pork and maybe it will go away in time!!!

PORK

Rockie

I applaud employers who are able to be as flexible and accomodating as Anne's employers apparently were. However, as someone mentioned, there is the "attitude" type of employee who has the "attorney in retainer" that you want to push over the edge of a cliff.

While you can be as accomodating as you wish or can afford to, you have to remember, if you let Betty Anne to this, you will have to let Suzie Q (or Billy Bob) do it also, no matter if it is convenient for you to do so or if you have enough staffing in this area. We have some employees who can afford to take leave without pay and some that have their short term disability set up to kick in after a week or so and they can manage to live quite a while on partial salary, especially if they have a significant other who is willing to chip in and pay the bills while they are out.

neveradull

Thanks for the advise I really appreciate it. After another meeting today the employee decided to remain at work until her doctor decides or September 1. She had a complete change of attitude, and decided she could not afford to be without salary and benefits with new baby on the way. After re-reading my post I apologize for all the sarcasm. I am always calm, cool and collected in front of the employee but afterwards tend to vent. By the way when I offered to talk to her attorney she couldn't remember the name. Amazing how often that happens.

Kymm

Am I correct in thinking that in California, a person is entitled to up to 4 months pregnancy leave (whle disabled) and in addition, may be entitled to 12 more weeks under FMLA (to take care of newborn)?