FMLA Leave Question
oxkimbaxo
2 Posts
I am 33 weeks pregnant (due July 6th). I put in my request for FMLA leave May 1st for June 1st, giving the 30 day notice required. Since then, my employer has not notified me of whether I have been denied or accepted for FMLA. Today I was informed that I needed to get a note from my doctor in order to go June 1st. Can they do this? Also, I read that they were supposed to notify of whether my request for FMLA was accepted or declined within 5 business days of my request. No one had said anything to me until now and June 1st is only two weeks away. Does anyone know what the deal is?
Thanks.
Comments
Cool, a reason to catch up on some of the changes in FMLA regs.
See 29 CFR 825.300 4(b)(1):
b) Eligibility notice. (1) When an employee requests FMLA leave,
or when the employer acquires knowledge that an employee's leave may be
for an FMLA-qualifying reason, the employer must notify the employee of
the employee's eligibility to take FMLA leave within five business
days, absent extenuating circumstances.
4(b)(2) states:
(2) The eligibility notice must state whether the employee is
eligible for FMLA leave as defined in Sec. 825.110(a). If the employee
is not eligible for FMLA leave, the notice must state at least one
reason why the employee is not eligible, including as applicable the
number of months the employee has been employed by the employer, the
number of hours of service worked for the employer during the 12-month
period, and whether the employee is employed at a worksite where 50 or
more employees are employed by the employer within 75 miles of that
worksite.
4(c) requires a rights and responsibilities document be provided to the employee along with notification of eligibility in 4(b)(2)
4(c)(1)(ii) requires that the employer's notification explain if certification is required.
6(d) requires the employer to notify the employee once they have all required information (e.g., certification) the final designation determination within 5 days of having such information.
6(e) says that employers who don't provide the eligibility notice and designation determination can be slapped around:
(e) Consequences of failing to provide notice. Failure to follow
the notice requirements set forth in this section may constitute an
interference with, restraint, or denial of the exercise of an
employee's FMLA rights. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)).
[73 FR 68096, Nov. 17, 2008]
So.... They can tell you that you have to get a cert and I wouldn't fight that. They're entitled to it. However, you might let them know that you did not receive your notice of eligibility. How you do that depends on how combative you feel about the situation and how backwards you think your Company is. If you think they'll try to do something evil, you might have an attorney write the letter on your behalf. No need to get ugly at this point, just simply saying that you would have gotten a cert earlier had you been informed of the need for one but, since you were not provided with any eligibility letter, ever, or even notified orally of your FMLA eligibility, you have taken no action.
They can't deny your FMLA leave if you are eligible and provide a cert indicating that you have a serious health condition, even if the cert comes after your leave starts, particularly since they caused the delay, themselves. Some would counsel that they would be dumb to do anything at this point but grant FMLA like protection even if not granting FMLA leave.
Thanks for the reply! Is the Medical Certification a paper that the physician has to fill out with questions like "Is the patient pregnant? yes or no"?
The whole problem is really that they just don't want to let me go before my due date, however I work in a physically demanding job where I don't feel comfortable staying that long. I know I am eligible for leave (worked for over a year, accumulated more than 1250 hours, have legitimate condition, gave 30 day notice, etc). My company is pretty mess up and the store manager highly dislikes me for personal reasons.
So its not that they want to deny me my leave, they just want to deny letting me go on June 1st. UGH.
Thanks for the reply! Is the Medical Certification a paper that the physician has to fill out with questions like "Is the patient pregnant? yes or no"?
[/quote]
Yes. And, while it's easiest for the employer to use the forms provided by DOL, they are not required (although there are standards the form must meet), so the form won't look the same across all employers.
[quote user="oxkimbaxo"]
The whole problem is really that they just don't want to let me go before my due date, however I work in a physically demanding job where I don't feel comfortable staying that long. I know I am eligible for leave (worked for over a year, accumulated more than 1250 hours, have legitimate condition, gave 30 day notice, etc). My company is pretty mess up and the store manager highly dislikes me for personal reasons.
So its not that they want to deny me my leave, they just want to deny letting me go on June 1st. UGH.
[/quote]
That's within their right. They are not obligated to let you take leave before it is medically necessary. If you cannot show that you will be incapacitated within the meaning of the statute or regs on June 1st, then you are not entitled to take leave with FMLA protection at that time. You may wish to explore light duty or the potential for bed rest requirements with your physician. FMLA exists to provide leave for persons with serious health conditions who are incapacitated. Sadly, being irritated or disliked by your direct supervisor does not quality unless your serious health condition would be antagonized/triggered by that, such as could be the case if you were clinically paranoid.
First of all - congratulations! Second - please know that the certification requirements for a pregnant person are somewhat less strict than for other serious health conditions. Generally, treating physicians will certify the pregnant employee's need for leave for a reasonable, medically supported period of time prior to birth, or at least the need for modified hours/working conditions. Whether or not 5-6 weeks prior to delivery is a reasonable period of time depends on you and your doctor and the physical requirements of your job.
Under 2009 FMLA regulations, a mother is entitled to leave for incapacity due to pregnancy even though she does not receive treatment from a healthcare provider during the absence, and even if the absence does not last for more than 3 consecutive calendar days. (29 CFR 825.120(4)).
I concur with TXHR Guy in that they have dropped the ball on eligibility, and everything else he says (as usual!)
[quote user="hr410"] First of all - congratulations! Second[/quote]
And that, too. Glad we had kids. :-)
The law also specifies <?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
825.115:
"A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(b) Pregnancy or prenatal care. Any period of incapacity due to pregnancy, or for prenatal care."
Given that most pregnant women will attend pre-natal appointments prior to the birth of the child, and that time away from work can be counted as FMLA time, it is ok to require a medical certification.
[quote user="Anne Edwards"]I am not sure I agree with the reply below regarding the employer's "right" to require you to provide a doctor's certification for birth of a child. The law specifies that the "birth of a child" is a qualified reason. "Serious health condition" is something separate from birth of a child, and that seems to be when the doctor certification can be required by the employer. Now if you were taking more than the standard number of weeks for the birth, due to a complication or illness of your self or the baby, then the "serious health condition" would be the applicable condition and the certification could be required. I would be interested in others responses on this issue.[/quote]
Anne - Remember here that the original poster is asking to go out on FMLA almost a month prior to the birth of the child. If the poster is saying she is in a physically demanding position and can not work up until her due date then I can understand why the employer would ask for a doctor's certification in this case.
[quote user="Anne Edwards"]I am not sure I agree with the reply below regarding the employer's "right" to require you to provide a doctor's certification for birth of a child. The law specifies that the "birth of a child" is a qualified reason. "Serious health condition" is something separate from birth of a child, and that seems to be when the doctor certification can be required by the employer. Now if you were taking more than the standard number of weeks for the birth, due to a complication or illness of your self or the baby, then the "serious health condition" would be the applicable condition and the certification could be required. I would be interested in others responses on this issue.[/quote]
29 CFR 825.112 (a) - (a)(1):
a) Circumstances qualifying for leave. Employers covered by FMLA
are required to grant leave to eligible employees:
(1) For birth of a son or daughter, and to care for the newborn
child (see Sec. 825.120);
This leave request is not for the birth of a child (see clarification below).
29 CFR 825.120 (a)(4)
(4) The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that FMLA
leave begin before the actual date of birth of a child. An expectant
mother may take FMLA leave before the birth of the child for prenatal
care or if her condition makes her unable to work. The mother
is entitled to leave for incapacity due to pregnancy even though
she does not receive treatment from a health care provider
during the absence, and even if the absence does not last for
more than three consecutive calendar days. For example, a pregnant
employee may be unable to report to work because of severe
morning sickness.
The request for leave is not due to incapacity due to pregnancy, prenatal care, or for her own serious health condition following the birth of the child. It is for the anticipated and not yet medically supported concern about incapacity due to pregnancy.
Note that the act, itself, occassionally refers to pregnancy as a serious health condition, such as in 29 CFR 825.306 (a)(7):
7) If an employee requests leave on an intermittent or reduced
schedule basis for the employee's serious health condition, including
pregnancy, that may result in unforeseeable episodes of incapacity,
information sufficient to establish the medical necessity for such
intermittent or reduced schedule leave and an estimate of the frequency
and duration of the episodes of incapacity [emphasis added]
Finally, the government's own recommended certification document asks the following:
"2. Is the medical condition pregnancy? ___No ___Yes. If so, expected delivery date: ____________________ "
I know of at least one large, respected consulting firm that advises employers to require a medical certification for every FMLA leave request of every kind. That has been my own practice, including pregnancy.
I have another question (instead of starting a new thread) -
We have an employee who was supposed to go out on pregancy related leave - however, before her due date she was put on bed rest. What is required or what changes when that happens?
I have another question (instead of starting a new thread) -
We have an employee who was supposed to go out on pregancy related leave - however, before her due date she was put on bed rest. What is required or what changes when that happens?
[/quote]
It's just a medical complication of pregnancy. It's generally FMLA qualified and you are entitled to a cert for it. It's usually unforeseeable within the meaning of 30 days notice. One day the mom-to-be is told to go on bed rest and about a business day later is when you find out about it, so just follow the general rules for asking for a cert after the fact.