Force her to call it FMLA?

Half HR · September 2004

This may be an elementary question, but I've seen conflicting information and need to clarify.

We have a pregnant employee who wants to take leave from birth to 12 weeks to bond with the baby. She wants to preserve as much FMLA time as possible so she doesn't have to pay her insurance premiums in case the leave goes longer than 12 weeks.

She wants to use up vacation time at the beginning of the pregnancy and then declare FMLA when she's used that up. (We do require someone on FMLA to use up their paid leave.)

Should we force her to run the FMLA clock during the paid leave? She's a good employee and we want to be reasonable. We have fewer than 100 employees, so some of the WA state leave does not apply to us.

Thanks,
Half HR

SMace · September 2004

Yes you can force her to use FMLA. If you don't you cannot force the "bad" employee to use his/her FMLA.

POPEYE · September 2004

I agree with Smace. What you do for one you must do for all. Slick Willie Clinton wasn't concerned if an EE was good or bad when he pushed the act through.

Half HR · September 2004

Thanks. That's helpful info.

An FYI for Washingtonians: we can't force her to use FMLA during the disability phase of the pregnancy, since the WA Pregnancy Leave laws intend there to be disability leave in addition to FML if the ee choses. The employer doesn't pay premiums during that type of leave.

Half HR

Don D · September 2004

The only advantage an employer has in the case of FMLA is running leaves concurrently in order to avoid 'leave stacking'. It should be taken advantage of. It's not an ACE, but it IS your only card.

Half HR · September 2004

Thanks. Yes, I agree with you in the case I wrote about.

But our labor attorney told us that in WA state we can't force an employee to stack the WA state pregnancy disability leave and FMLA *during* the disability phase of the pregnancy.

He said the intent of the law was to allow stacking so that new mothers who had complicated pregnancies would still be permitted the 12 weeks of FMLA after the baby was born.

Half HR

Don D · September 2004

For the employee's benefit, you must do what your state law requires. But, for the employer's benefit, you SHOULD do what the federal statute allows. If your state law precludes your mandating vacation use during during the disability phase of the FMLA, then you simply can't. But, it's my understanding that once the employee is in the bonding phase of her entitlement to FMLA, you may, and should charge any leave balance concurrently.

dchr9203 · September 2004

Yes its FMLA and use your policies for vacation/sick. Our policy says all accrued leave time must be used concurrent.

jmcaa · September 2004

Also, I'm sure she has had prenatal doctor visits which should have been used to reduce her available FMLA.

mwild31 · September 2004

[font size="1" color="#FF0000"]LAST EDITED ON 09-09-04 AT 04:26PM (CST)[/font][br][br]Sounds like you got all of the right answers Half HR! The only minor things I would add is the disability provisions in WA apply to businesses with 8 or more employees & that the employer can request a note of the doc. stating that disability leave is required for the pregnancy.

Rockie · September 2004

The Federal law requires that you either require the leave to be used concurrently for all or not require for all. Cannot pick and choose and must also inform employees via the policy what method you require.

That being said, it appears that WA singles out pregnancy differently than other disabilities and "protects" the bonding portion (if I'm reading this correctly). Anyway...if your state law is more generous, this is what is required of you, as an employer.

We require that employees use the paid leave concurrently with the FMLA.

Force her to call it FMLA?

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