Short Term Dis and FMLA

hrnewby · July 2005

We have an employee who was out on Short term Disability in January. She had a baby. Now the baby is in a full-body cast and she has to stay home to care for it since she can't put the baby into a car seat to take to a sitter's home. Should I include the STD time into FMLA? She was not notified in January that it would be included in FML time, so I am thinking the answer is no. But if I did notify her at the proper time, can they run concurrently? Also, without getting too deep into the situation, if the baby is put into foster care until an investigation is concluded, I am thinking she would not be covered under FMLA during the time she doesn't have the baby. Any insight is appreciated.

LivindonSouth · July 2005

This is certainly the most 'unusual' FMLA event I have ever heard of and I wish you all luck with the outcome(s). If you did not put her on FMLA (which you should have) when she initially went out, I would not try to go back and do it now. Yes, all types of leaves can and should run concurrently. If it is your standard practice and policy to put pregnant employees on FMLA commencing on their first absence event for anything related to that pregnancy, you could always write her and tell her that her FMLA leave began that date and tell her her maximum during your one year period.

I haven't thought through the second half of your question yet, but if she is not bonding with the child then, or caring for the ill child or off due to her own medical condition, she would not be eligible for FMLA if the child is not in her custody, I wouldn't think.

HRLASS · July 2005

You should have put her on FMLA when she was on Short Term Disability. (Yes they can run concurrently, as can Workers' Comp and FMLA.) I think it is too late to do so now, even if you have a policy. If you didn't follow it then, and this is a federal law, I have never seen a case when the courts allowed it to be designated as FMLA six months later.
If the baby is put into foster care, she would not be eligible for FMLA family care or parental bonding leave unless she was ordered to have supervised sessions with the baby. That does not invalidate her eligibility for any other FMLA leave not related to this situation.

marc · July 2005

Yes, you should have notified her when FML started, but the Ragsdale case gives some leeway, basically stating that the Act was not intended to give the EEs more than 12 weeks just because the ER did not notify of the start of the clock. You can do as Don suggested an indicate the first day it started and how many hours she will get in total.

If she is out on medical leave, whether it is for baby related or care, or personal care, she still only gets the 12 weeks - why the hours were FML does not matter.

hrnewby · July 2005

I am happy to report the child was released to her parents, our EE, but only after they both took polygraphs. The child is in a cast up to her rib cage, and out EE wants FML to stay home with her since she can't put her in a carseat to go to a sitter. I have asked for the Doctor Cert., but am not sure this is a "serious medical condition" or just a case of "I want to stay with my baby."

marc · July 2005

Sounds like a very serious medical condition, but I almost always let the Dr.s certificate guide me. Look to it for your determination.

LivindonSouth · July 2005

She has 12 weeks from the first event of absence due to a serious medical condition or the birth of the baby or absences related to her pregnancy. But a key factor is your punching the clock to get it started. She's going to get 12 weeks one way or another, so it's really not worth messing around with.

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

Short Term Dis and FMLA

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