Time off and fmla
neveradull
194 Posts
I have a FMLA qualified pregnant employee who has submitted the required certification to be off on FMLA the certifcation date is September 1. She states that she is going to take time off beginning July 16th and for 12 weeks following the birth. (there is no medical justification for this extra time) She has used all sick and vacation time but wants leave without pay. I have concerns: 1. about allowing this and setting precedent.
2. if allowed she would qualify for cobra, but starting September 1,would we then have to again pay benefits for her 12 weeks of FMLA.
3. if her demand is not granted would this be considered a voluntary termination, are there any discrimination/retaliation concerns.
4. Anything I am missing? I know Washington State has maternity leave.
I expect that I will have to consult and pay our attorney on this one, but would really appreciate your thoughts. I just hate it when an employee says they know the law and we must meet their demands.
2. if allowed she would qualify for cobra, but starting September 1,would we then have to again pay benefits for her 12 weeks of FMLA.
3. if her demand is not granted would this be considered a voluntary termination, are there any discrimination/retaliation concerns.
4. Anything I am missing? I know Washington State has maternity leave.
I expect that I will have to consult and pay our attorney on this one, but would really appreciate your thoughts. I just hate it when an employee says they know the law and we must meet their demands.
Comments
We have an employee out on FMLA leave right now for the birth of her baby. She left on her leave a month before her baby was due. Her doctor provided the note saying she needed bed rest, which I know wasn't true because this girl told me that she didn't need it, but she begged her doctor for the note. Well, she had her baby C-section and she is saying that she is going to need a total of 14 weeks, because she needs extra time to recover. We told her as long as she has a doctor's not saying she needs those extra two weeks she could have it, but no note, no extra weeks.
It sounds like you have quite a pickle there. In my research on FMLA I am quite confident that you only have to allow FMLA leave for the time that the medical certificate specifies. If this woman has not been able to convince her doctor that sne needs medical leave before September 1, then you have no obligation to give her any leave before then. However, when you are dealing with pregnancies, things can change overnight - and she may develop a condition that requires FMLA leave prior to September 1st, so be aware of that.
As far as offering her unpaid leave from now until 9/1, you are correct to look at the circumstances of when you have allowed that leave in the past for other employees. It seems to me that you are correct, though, that if she goes on unpaid leave and isn't working when STD or FMLA kick in, you are not liable to continue her benefits. You will have to give her the COBRA notice as soon as she goes on leave, though.
From an employer standpoint, you can refuse to give her the unpaid time off prior to her FMLA eligibility. It sounds like she might be leaning towards staying at home with the baby so she doesn't care about FMLA leave - she just may not want to reveal that yet.
From the employee standpoint, you probably have nothing to lose by giving her unpaid time off prior to FMLA. I became pregnant with my son a mere month after I started a new job for the state of Illinois. I was not eligible for ANY kind of leave, not to mention FMLA. However, they worked with me, gave me 6 weeks off before the baby for bedrest and 4 months after. I came back to work with a fresh perspective of how flexible they were, and worked my proverbial a$$ off - including tying a federal jury trial the second month I was back at work. I really appreciated that they valued me enough to give me what I needed, and therefore I wanted to show my loyalty once I returned.
Before I get carried away on my soapbox here, I just want to remind you that what the law REQUIRES and what you can do are two different things. Yes, you want to make sure that you treat your employees fairly, but if this is a long-term employee, and a good worker, you may want to cut her some slack. (I'm off the soapbox now, but DonD, there is room to join me here.)
Anne Williams
Attorney Editor
M. Lee Smith Publishers, LLC
My OINKY outlook on this situation, tell her to eat more Pork and maybe it will go away in time!!!
PORK
While you can be as accomodating as you wish or can afford to, you have to remember, if you let Betty Anne to this, you will have to let Suzie Q (or Billy Bob) do it also, no matter if it is convenient for you to do so or if you have enough staffing in this area. We have some employees who can afford to take leave without pay and some that have their short term disability set up to kick in after a week or so and they can manage to live quite a while on partial salary, especially if they have a significant other who is willing to chip in and pay the bills while they are out.