FMLA Returning???Help

justgettingstarted

A woman in my company has recently given birth to twins...she began her FLMA in mid-September because her doctor put her on bed rest (however, she never produced the paper work) and is to return to work in mid-December. She has now called and said that her six week check up isn't scheduled until 10 days after she's suppose to return. Her twelve weeks are up and the temps that we keep using (with a 40% mark up) to fill in for her are not working out...What to do?

LindaS

Did you have ANYTHING other than her word regarding the need for her to go on bedrest? If not, how did you come to the conclusion that you were going to grant her the leave? Are you looking to terminate her due to the fact that the temps aren't working out so you can permanently fill her position? If it were me I would grant the additional 10 days of leave since she doesn't have a medical release to come back to work and if she decides to push the issue from a legal standpoint I don't see where a court will rule that an additional 10 days would be considered unreasonable. Since she is technically still protected under the FMLA law, you can't fill her position permanently anyway. If, after she sees her doctor, he states that she needs more time off, you can then look at terminating her (if that's what you choose to do).

justgettingstarted

From a legal stand, do I have to grant her additional days?

She filled out the FMLA forms requesting leave and it was granted mainly because was beginning to have very poor attendance due to the pregenacy.

Nat

I don't think legally you would have to grant her the additional days. I think if you are considering terminating her instead of allowing the additional 10 days that you should consult with your attorney.

What have you done in the past? Have you allowed extended leaves before? If so, you probably will need to do the same for her.

justgettingstarted

I am new to the position and from what I understand the company has never dealt with this situation before.

San Francisco

I think that in the "worse case scenerio" - employee sues under FMLA rights - you'd have a difficult time defending terminating her because she needed an additional 10 days. It seems there have been court cases or something to that effect, but I could be wrong. We allow the employee to return if we are only taking about a week or two. For us, we would be hard pressed to show that little bit of time would have any substantial impact on our company.

Elizabeth

LindaS

No you do not HAVE to grant her the days since she has used all of her FMLA but if she decides to seek legal counsel your company will spend a significant amount of money justifying WHY you terminated her and HOW an additional 10 days was unreasonable. As part of the FMLA forms the physician needs to certify the need for the leave, are you saying that you granted her request for early leave based only on her statements?

mrsbowden

First,
I would not terminate ..I would grant the 10 days especially if you didn't get a medical certification when she left and I would REQUEST a release to work before or on the return day.

Under FMLA you have the right to terminate someone once they have expired their 12 weeks, but you need to also look at the reasonable factor(what I call it) is 10days with a doctors excuse unreasonable to fire someone? I think so. and you may end up spending a lot of money to find out if it is unreasonable from court..it would probably be cheaper to just give her the 10days.

Just my thoughts x:)

justgettingstarted

Thank you all for your input and help.x:D

irenesmsaclaims

It is my understanding that disabilities or infirmities or risk connected with childbirth exist BEFORE the birth, not after. A person can return to work prior to the 6-week check-up by the doctor. Have you asked for the documentation during this period since mid-September?

marc

Irene asked a good question. Seems like the check-up not corresponding to the expected return to work is just scheduling. Nothing says she cannot return to work before the check-up. Give her time off for that appointment, but it seems reasonable to request the return or a medical certification as to why not.

From a business perspective, ask yourself what the company would like to have happen. If she was a good EE prior to the leave and she wants to return, then work with her. An additional 10 days may be a hardship, but a grateful, motivated EE will certainly make it worth the additional investment. If you are wanting to move on, then hold her feet to the fire. I would say your documentation appears to be a bit weak, which may cut against you in any legal process, but 12 weeks of FML is 12 weeks, not 13 weeks and 3 days.

mrsbowden

One added note..if you choose not to grant the additional 10 days and terminate..be sure you hold fair and consistent in the future, to avoid any possible litigation. x:) Good Luck

Don D

And if you do grant the additional ten days, which the law does not require or suggest, you must be prepared to do so following all other absences, and not only for women who have given birth. Women who have not given birth AND men who want an additional ten days. Consistency. By the way, its the ADA, not FMLA which expects an employer to reasonably extend a return date by a 'few days'. A judge would not let a jury decide for the employer that he 'should have' gone beyond what the law and his policy states. FMLA is cut and dried unless you or your state grant 'more than' the Act grants.