FML Not Offered

[font size="1" color="#FF0000"]LAST EDITED ON 10-19-06 AT 01:25PM (CST)[/font][br][br]My daughter works for a national retail chain. She was hired when she was four months pregnant. When she went out on leave, she was given FMLA paper work to fill out which she did. She clearly had not met the requirements for FMLA.

She has now been back at work for 5 months and has past her one year anniversary date. During the last week of August her baby had a serious ear infection which required her to go to the doctor for antibiotic injections for four consecutive days. She was refered to a specialist and on Sept. 7 the baby had out patient surgery to have tubes put in her ears.
At the end of September my daughter was written up for missing too many days. Shouldn't the employer have offered FML for this?





Comments

  • 12 Comments sorted by Votes Date Added
  • Perhaps.

    We would need to know the date of her one year anniversary and if she got her 1250 hours in. It sounds like the medical condition would qualify. Also, does the retail chain have 50 EEs within 75 miles?

    If she did cross her anniversary before this event, it looks like FML applies.
  • >Perhaps.
    >
    >We would need to know the date of her one year
    >anniversary and if she got her 1250 hours in.
    >It sounds like the medical condition would
    >qualify. Also, does the retail chain have 50
    >EEs within 75 miles?
    >
    >If she did cross her anniversary before this
    >event, it looks like FML applies.

    Her anniversary date was 8/24/2006 & she did have in her 1250 hours & yes there are 50 employees within 75 miles.

  • Sounds to me like she should be eligible. Did she notify the company regarding the medical issues?

    I don't want to unreasonable chide this EE, but if the employer does not know about the issues, it cannot make a call regarding FML. That is why the notices are posted and why lots of companies conduct trainings.

    She should contact HR and provide the info - then let them make the call regarding the write-up.
  • >Sounds to me like she should be eligible. Did
    >she notify the company regarding the medical
    >issues?
    >
    >I don't want to unreasonable chide this EE, but
    >if the employer does not know about the issues,
    >it cannot make a call regarding FML. That is
    >why the notices are posted and why lots of
    >companies conduct trainings.
    >
    >She should contact HR and provide the info -
    >then let them make the call regarding the
    >write-up.


    To my knowledge the company hasn't done any training. My daugher did keep the store manager informed of the baby's condition and took in doctor's notes for each day she missed and that surgery was going to be required. The store manager was out of town when my daughter received the write ups from one of the assitant managers.


  • This chain wouldn't happen to be Wal-Mart would it? They are notorious for employement law violations. Even if it's not, I think the same issue applies with many retail chains - they do not provide proper training for their managers and they do not have a HR person on site. I would have her contact the HR Dept, where ever they are located.
  • How much FMLA time did she take when she was out for the birth of her child? If she used it all then and the second event took place less than a year after she used her time then it would seem the company should have notified her that she used her allotment of FMLA time and either tried to work something else out with her or caution her on the consequences if she took more time off.
  • Sorry joycel, but I disagree. Since she hadn't been there 1 year when she took her first leave, it isn't really fmla leave. It is just leave. She is entitled to her full 12 weeks upon meeting the qualifications (1 year, 1250 hours, etc). The earlier leave only applies if taking it kept her from working the full 1250 hours. As long as she did, she is qualified and entitled to fmla leave now.

    I believe there are legal cases that will back me up.


    Nae
  • Technically I agree with you, NaeNae. However, I think it's quite possible her employer sees it the other way -- I think they may well see that they allowed the leave the first time around and that they are considering it FMLA leave (even though technically that wouldn't be correct). They may be hoping she doesn't challenge it. Personally, I wouldn't have handled the situation the way they did. If we wanted to be generous enough to allow leave beyond Short Term Disability (if she even had that), then that's our decision (we just have to allow that for the next employee in the same situation). I wouldn't have marked anything as FMLA until the employee qualified for it.
  • When she passed her anniversary date on 8/24, any medical issues with her baby that meet the definition provided by the FMLA make her eligible for FML.

    She should get the paperwork from the company and have her doctor fill it out, present this certification to HR and ask for the write up to be nullified.

    There was no FML when she gave birth because she had only been working 5 months. Any leave granted then was some other form of leave, not FML.

    When a company stretches the FML parameters, it is increasing it's risk profile for more and more leave, or, increases the risk of administering it differently for some than others. Once that happens, Title VII actions and FML interference are more and more likely to happen. Then the big checks are not far behind.
  • Precisely. The company's big mistake was claiming she was on FML leave when she gave birth to her baby. Now they are trying to make their mistake become her problem.
  • I haven't thought about it, but if 8/24/06 is her 1 year anniversary (and she had 1250 hours in the last 12 months), what if the employer used (on all FML not just this one) the "rolling 12 month look back" way of calculating time off? Does this mean she wouldn't have any FML time off until employed 2 years, even though she might have been out between month one and month 12 or month 24?
    They would have to go back and look which would be before eligible, but she actually took time off.

    Just a thought. Not saying right or wrong. Not sure how I would handle this.
    E Wart
  • Even if you look back, the 1st leave is not fmla leave so it wouldn't count against the employee.

    Nae
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