E-mail confusion leads to FMLA suit

courtroom-detail

An employee tells his boss he needs time off to care for a sick family member — but says he doesn’t want to use FMLA. How should the manager respond?

Here’s some guidance from a recent court case:

An employee missed a week of work to care for his hospitalized mother.

He sent his manager an e-mail, saying he needed “a couple days off” to make arrangements for her medical care. Also, he said, “I could apply for the family care act, which I do not want to do at this time,” referring to FMLA.

After getting the e-mail, the manager tried to call the employee — 14 times — during the following week. He got no answer or response. A week after the e-mail was sent, the employee finally returned the manager’s calls.

The manager told him he was fired. Company policy said missing work for more than two days without notifying a supervisor was grounds for immediate termination. Since the employee only said he’d be gone for “a couple days” and had already missed a week, the manager decided he’d violated the policy.

The employee sued, claiming his absences should’ve been protected under FMLA.

The company argued he said clearly in his e-mail that he didn’t want FMLA. But the employee claimed he still laid out the reasons for his absence, which notified the company he was eligible for FMLA. Therefore, he said, the company was still obligated to send him the appropriate forms and ask him if he wanted FMLA leave.

No notice obligation

The company said the case should be thrown out. The court agreed.

The judge noted that there have been several cases where employees have turned down FMLA leave, even though they were eligible — often because the employee wants to save leave for a future need.

In those situations, the court ruled, the employees forfeit protection for their absences and are subject to company policy.

When workers decide not use FMLA, employers aren’t obligated to try and persuade them otherwise, or to consider their absences protected anyway — as long as the employees are properly notified that they’re eligible and aren’t misled about their FMLA rights.

Cite: Righi v. SMC Corp. of America

Comments

  1. If a company allows employees to elect not to utilize FMLA when they are eligible, they set up a potential hazard. If the employee is absent without FMLA protection several times, they could run into absenteeism problems. If they are smart enough they could use FMLA protection only to prevent punitive actions from being taken for excessive absence. It would be best and also allow for consistency throughout the company if FMLA was used for every employee qualifying event. I would send the FMLA documents to employees and if there is a failure to respond…they would be out on an unapproved leave.

    In addition to the above, it was my understanding that the company identified whether an event qualified for FMLA protection, not the employee. The company policies should speak clearly on this subject so all employees know the company practice before an FMLA event occurs.

  2. I have the understanding the employer has an “affirmative” obligation to notify the employee of the FMLA rights. It would make sense then to count the qualifying absence toward the 12 weeks of annual leave. The FMLA protects the employer as well as the employee. With that said, the employee does not get to select which absences he/she wants to count as FMLA leave and which he/she does not.

  3. Janice Scherwitz says:

    This is very timely for me at the moment. I have an employee who went out due to illness. I sent her all the necessary paperwork for FMLA. In what is a new experience for me, the doctor who was treating our employee refused to fill out his portion of the paperwork. The employee was terrified she would lose her job. Fortunately we are not that hard and we are granting her FMLA protection based on the doctor’s note putting her out. In my conversation with the doctor he insisted that she ” didn’t need” FMLA (as if it was his call…..gotta love it). Although I explained to him that this is a Federal law, he seemed indifferent to the whole process and to his patient’s needs….

  4. If am employees is on medical leave to have a baby and has not returned to work because leave is not up yet and get fired during that leave time can they sue the company using FMLA?

  5. Employees can choose whether or not they take FML – that is why they fill out a “request form.” You cannot force an employee to use FML. If they have other paid time off benefits available they can use them if they would like and not be on FML just becuase you want them to.

    The FMLA is to protect an employee and their job. Not allow HR managers or employers tell people when they have to request something that is a Federal right of theirs.

    Just becuase we have an obligation to inform them of their rights does not mean that we can fore them to use those rights.

  6. Lady McB says:

    Middle road – I think a good HR manager, doesn’t just assume that the employee knows and understands the law. Instead a HR mngr could, to protect the company, explain to any employees making any request of this nature that they have rights but they also have the responsibility to fill out the paperwork to secure those rights, and also explain that not taking the FMLA leave could result in an appearance of absenteeism. I would even have them sign a statment that says they have received the FMLA paperwork.

  7. Unknown –

    Was the employee given a letter that approved the FML request? Did the employee agree to come back sonner than the maximum leave period alloted for by the Feds? We would need more details before we can make a judgement about your issue on a legal level.

  8. Janice –

    I would almost get the feeling that this Doc is more of a quack and is involved in some type of fraud with this case and is trying to avoid having his name on too many documents.

    I hope that that employee is considering a new doctor.

    You might think about requesting a second opinion.

  9. Janice Scherwitz says:

    Ed-
    I agree and I told her that she might re-think her relationship with this doctor. Don’t really need a second opinion – I know she was definitely sick – it just cracked me up that he would refuse to comply with a Federal Law and that he though he could make the rules….can’t make this stuff up…

  10. Question for Ed & Janice:

    Ultimately, I agree that the employee should change doctors, but…..

    Just to satisfy my own curiousity, let’s say the company did NOT accomodate the Doctor’s recommendation without the FMLA paperwork…. what’s the next step?

    It doesn’t benefit anyone to pursue action against the doctor — my opinion would be that this would affect the doctor’s impartiality and therefore his ability to effectively treat the patient.

    Perhaps this is my own lack of knowledge, which I freely admit — who ‘enforces’ FMLA, other than through civil action? E.g. is the doctor accountable to a medical board or some other entity for NOT fulfilling his obligation under FMLA?

    Thanks for your insight…..

  11. Janice Scherwitz says:

    Honestly, I have no idea who if anyone would be able to compell the doctor to comply. I suppose it would be up to the HR Administrator for whom I work to make the final call, but in this case we knew the employee was ill. If the case had been less clear, it may have been a problem for the employee I’m sorry to say. This is the first ( and I hope the last) time this has ever happened to me. Of course, I work for doctors, and if our employees see them I have a bit more leverage (LOL)

  12. I would likely see if my VP of HR would allow me to call the doctor’s supervisor and discuss the situation with her/him. I do not think that the law obligates the doctor to complete that paperwork – but I do not know for sure.

    I would seek a second opinion – I believe that the company has the right to do this if they do not feel that the current information they have is correct or accurate. I am not sure this applies if a doctor refuses to complete the paperwork. But one can always say that they cannot make a judgement about granting FMLA with teh current information and therefore seek a second opinion.

    Ultimately the company has to practice due diligence in attempting to grant the employee every opportunity granted to them under the law.

  13. oregondiver says:

    Whenever I hear of an employee having a need for leave, whether it is through the grapevine (I heard that so n so’s spouse was in a car accident) or if the employee/supervisor notifies me directly, I send the FMLA paperwork including med cert. If it is not turned in within 15 days, then I give them another 10 days, if they still haven’t turned it in, then I deny their leave under FMLA. I always grant provisional as soon as I hear about it. If they don’t want the FMLA protection, then I at least CYA’d me/employer , gave them notice of their rights and responsibilities, and I can deny without medical information. They can’t come back later and say they wanted it (well, actually they can, but going forward, not retroactive).

  14. Janice, here is a related story you might find interesting.

    Some doctors charge steep fees for FMLA forms
    By Lydell C. Bridgeford
    March 10, 2009

    More physicians are charging hefty fees to fill out medical certification forms required by The Family and Medical Leave Act, said a few HR professionals during a session yesterday at the Society for Human Resource Management’s three-day conference on workplace legislation.

    FMLA permits employers to require workers who seek leave protection to submit within 15 days a medical certification form that substantiates the duration for the leave to be taken. 

    A few attendees noticed that a growing number of physicians are charging anywhere from $100 to $150 to complete the FMLA required forms, which can sometimes result in a bureaucratic delay in granting the FMLA leave. Others contended that physicians who charge costly fees for certifying FMLA forms classify the procedure as an administrative function, so some health plans will not cover the cost.

    “If a doctor is charging, I recommend that you check with your plan to make sure it is covered,” said Manesh Rath, a labor and employment law attorney at the Washington, D.C.-based firm Keller and Heckman, LLP. “Yet as you all know, whether a plan covers the fees is going to be unique to each health plan,” he added. “Plan coverage specs are going to change from plan to plan, even within the same carrier and from year to year.”

    Still, Rath acknowledged that he is hearing more stories about doctors charging fees to complete FMLA medical certification forms.

    Employers have to decide whether to cover those charges or allow the employee to bear the cost, he said. “Either way, that employee has an obligation to comply with an employer’s request for medical certification. I would not encourage employers to release the employee from those obligations simply because of fees tied to medical certification forms.”

  15. Jennifer says:

    A doctor has no legal obligation to complete FMLA paperwork. They can refuse to complete it for no reason, but they also have the right to refuse if they don’t think the health condition qualifies as serious as stated in the law. Doctors have to have that right, or employees could force doctors to fill out FMLA paperwork for any medical situation the employee deems fit.

    Our organization requires any eligible employee who is out sick for longer than five days to go on provisional FML. I send them the notification and the paperwork, and they have 15 days to return the paperwork to cover their absence. We give them 10 more days after that and during that time we usually attempt to have several contacts with the employee during that time to check on the status of the paperwork and reiterate to the employee that the paperwork is past due and they are in danger of termination. We require eligible employees to take the FML even if they have sick or vacation pay. They have to use their paid leave concurrently with their FML.

    We are aware that most doctors are now charging the patient to complete this paperwork, but it is a small price to pay to protect your job for up to 480 hours of absences that the employee could otherwise be disciplined and terminated for.

    It is not our intention to be uncompassionate, but to be consistent and fair with all employees. We even offer similar job protection benefits to non-FMLA eligible part-time employees as well.

    And, just to show that I am not completely unsympathetic, I have a chronic condition that requires that I miss work intermittently. My physician completes the paperwork each time it is necessary and charges me $45.00 each time.

  16. HRPeg is correct. It is the employer’s responsibility to designate leave as FMLA. Yes, the employee must have their health care provider (note that I didn’t say “doctor”) complete a medical certification form, but they DO NOT get to CHOOSE whether or not to use FMLA if it is a qualifying event. Whether or not the employee uses paid time off (i.e. sick leave, vacation, PTO) is a mute point; if it is a qualifying event, it’s still FMLA. The FMLA simply provides for protection and reinstatement, not pay. In California, employees can choose whether or not to apply for Paid Family Leave, but that is a wage replacement program and not a leave protection program, and they would run concurrently.

  17. Janice Scherwitz says:

    Irene – I didn’t know it was legal for a doctor to do that! I’m not sure which is worse – refusing to complete the form or charging $100 to do so….

  18. Carrie –

    You are so very wrong –

    It is a request form. Notice the key word REQUEST. You cannot force an employee to take FML. Do you force employees to take COBRA because of a “qualifing event”?

    You have an obligation to tell them their rights and their option to choose to REQUEST FML. You should also inform them that their position is not protected after they use all of their paid time off that they have available.

    You are surely headed for a law-suit – forcing employees to take FML. FML is an employee right.

  19. No, Ed, it is the employer’s responsibility to designate the leave not the employee’s responsibility. In fact, the employer does not even have to require medical certification if it chooses not to. An employee also does not need to specifically request FMLA, but if the reason they designate for an absence is FMLA qualified, the employer can designate it as such.

    http://www.dol.gov/elaws/esa/fmla/faq.asp

  20. Michelle says:

    Ed,

    According to a Fact Sheet posted by the DOL, there are circumstances in which the employer is obligated to “designate” the leave as FMLA. See the Employer Notice section of the following link.

    http://www.dol.gov/esa/whd/regs/compliance/whdfs28.pdf

  21. When my husband was ill and I was coming to work half days so that I could care for my husband. I also worked and tracked the extra hours. I was forced by my employer to use my personal time allotted for Vacation and Personal Illness before being able to use the FMLA. I didn’t argue at the time as care for my husband was my primary concern. When I used the FMLA, I was not paid for that time. However, I’ve also found out recently that we have paid employees for maternity leave PLUS FMLA so that they have been out a total of 18 weeks with pay. Yet I was docked for my FMLA time. I have not complained but am curious if my company has set a precedent now where ALL FMLA must be either paid or unpaid? Any ideas?

  22. Yeah for that judge…but, correct me if I’m wrong but didn’t this website have a review of a case where the company lost a lawsuit because the employee was entitled to FMLA and they didn’t give it to them? The final decision was it should have been given to the employee because they did qualify! No matter what a company does or how hard they try to do right they generally will loose because they are the “big bad employer” whose boss has a bottomless pit of money!!

  23. Ed: I strongly suggest that you reread the law before dispensing advice to others. The employer has EVERY right to designate leave as FMLA, even if the employee does not request it. An employee does not have the right to exhaust all paid leave and THEN request an additional 12 weeks of FMLA leave. Our organization, which is a public agency (and following the advise of our attorney and our state-wide professional personnel association), follows best practices of informing employees who are expected to have a qualifying absence in excess of one week that this leave will be counted towards their 12 weeks of FMLA leave.

    FMLA gives the employee the 12-week job protection and health insurance coverage. This is not IN ADDITION TO all accrued paid leave.

  24. Ed

    I don’t think Carrie was saying that you can force FML. The difference here is how we use the term ‘force’ as opposed to ‘assign’. Employers not only have the specific right to assign FML for qualifying events, they have a specific duty to do so even if the employee does not request FML. COBRA is an entirely different issue with completely separate statutory regulations.

    An employee does not elect to take FML for qualifying events. If the event falls under the description of the FML statute and you do not assign FML and then something happens that changes the employee’s circumstance down a few weeks later you could be on the hook for failure to provide the right to the protections under FML. The employee may request FML which means the employer must follow all of the regulations to provide FML protection. Or an employer, having knowledge that the employee event will be covered by FML, has a right and duty to assign it. If the employee fails to follow all of the interactive rules governing compliance with FML then the employee (and only then) loses their FML protected rights. Not assigning FML is what will get you sued.

  25. John,

    Thank you for expressing, in much clearer terms, what I was attempting to in my comment.

  26. HRPeg

    ;>)

  27. John –

    Could you please cite your source stating that an organization must assign FML without an employee request.

    I do not thin k you have it correct –

    If a female employee wishes to use two weeks of acrrued vacation to have her baby and return to work and that vacation is approved – it does not have to be FML. If she needs longer time off than that she can request FML to protect her job for 12 weeks until she can return.

    I would of course inform her of her rights to elect FML and give her the paperwork regarding her rights – but I believe you cannot just say she has used up those 10 days of her 48 per year.

    Again – John – please cite your source – if I am wrong I would likwe to see proof of that – otherwise ny VP will not beleive me.

  28. I have to agree with Ed on this…

    I worked for a company whose policy was to provide 2-4 weeks sick time on top of paid vacation, but they implemented a policy forcing you to switch to Short Term Disability (basically go on FML) following your 5th consecutive day. They did this because it was cheaper to pay for Short Term for everyone than to pay sick leave, even though their policy stated that it did so.

    I successfully challenged this with the support of my manager, since it’s my option and at my manager’s discretion how I spend my sick / vacation pay.

  29. Wendy –

    Since you know the law so well can you tell me where to find that information that a complany can force some one to take FML whether or not they want to.

    Cite your source – do not just tell me to read the law – you purport to know it well – so give us the citation for your source – please.

  30. If an HR Mgr or company allows an employee to make the determination of whether or not they want to use FMLA, they face problems on two fronts. As was stated earlier, if the circumstances change in the future and the employee doesn’t return to work as promised, the company’s hands may be tied because they didn’t inform the employee of their rights. Also, since the purpose of FMLA is to protect an employee’s job for 12 weeks, their decision to take FMLA eligible time and call it something else, gives them the opportunity to save their 12 weeks and use it later in the year. The result, the company is then on the hook for over 12 weeks. The purpose of the act is to prevent employees from losing their job when the appropriate situation arises, not to allow them to take over 12 weeks and still be protected. And remember, what you do for one, you must do for all.

  31. Michelle –

    I read all 5 pages and it does NOT say that an employer can automatically designate leave as FML – if you read that – please tell me the page and paragraph.

    The only time the word designate is used in the entire document is after it discusses an emplyee’s REQUEST –
    When an employee requests FMLA leave or the employer acquires knowledge that leave may be for a FMLA purpose, the employer must notify the employee of his or her eligibility to take leave, and inform the employee of his/her rights and responsibilities under FMLA. When the employer has enough information to determine that leave is being taken for a FMLA-qualifying reason, the employer must notify the employee that the leave is designated and will be counted as FMLA leave.

  32. Check the dol website… the 2 links above. The employer has the sole responsiblity for the designation, and the employer has the right to require that paid leave be taken concurrent with FMLA. My company requires that employees use their accrued PTO during FMLA as well. So in your example, if an employee leaves for 2 weeks to have a baby, an employer could designate it as FMLA AND require her to use her vacation time (assuming she is not eligible for some other type of disability leave).

  33. Check the dol website… the 2 links above. They clearly state that the employer has the sole responsiblity for the designation if they “acquire knowledge that the leave is for an FMLA purpose”, and the employer has the right to require that paid leave be taken concurrent with FMLA. My company requires that employees use their accrued PTO during FMLA as well. So in your example, if an employee leaves for 2 weeks to have a baby, an employer could designate it as FMLA AND require her to use her vacation time (assuming she is not eligible for some other type of disability leave).

  34. LS – of course the employeer designates the leave – but that is once it is requested by the employee.

    I have a question for you – if an employee has 5 sick days and gets the flu – then misses four days do you count that as FML?

  35. You do NOT have to force an employee to use FML in order for you to have advised them of their rights.

    I have another question – a female employee asks for a vacation day on a Friday becuase she is having her baby induced that day – do you count that as FML? Now a male employee asks for a Friday off – and you happen to know that it is because his wife is being induced – do you force him to use a day of FML?

  36. Ed, I think you need to rethink your example. If a woman asks for a vacation day on Friday to have labor induced, do you really think she will be back to work on Monday!!!!!!! As others have said previously, I think you need to read the regs carefully. For your organization’s sake.

  37. Ed, the point is that the EMPLOYER decides whether or not to designate the leave as FMLA – an employee cannot decide NOT to take it if the employer designates it as such. That does not mean that every time an employee takes a day off, that an employer must designate, however, as long as it is applied consistently then yes, if the employee is out for 5 days and the company policy states that leaves of 5 days or greater due to an FMLA qualifying event are designated as FMLA the employee cannot refuse the designation to take ANOTHER 12 weeks at another time. The employee does NOT need to furnish a formal request for FMLA if the employer knows that the leave is for a qualified leave. If a man tells you that he is going to be out for 2 weeks to care for a new baby for example, you can designate that as FMLA without him specifically requested FMLA. The employee does not even need to reference FMLA at all for you to designate the leave as FMLA if it is qualified.

  38. I am still waiting for all of the commenters that mention sources to actually reference the page/ paragraph. I read a five page DOL document that was cited and did not find the wording that they mentioned.

    I did e-mail the DOL regarding this issue –

    As long as you inform the employee of their rights governed under FML you have protected the company on that front.

    Could YOU PLEASE tell me exactly where it says you can force FML upon an employee whom does not request it. I’ve looked over your sources and do not see that.

    All I see is that once an employee requests FML it is up to the employer to research and designate and then track the leave. Not to tell some one that they just have to take FML. What are your sick days for? The 24 hour bug and nothing else but in case they use FML and then can still get paid?

    Again – since many of you seem so well versed in the law can you please specifically point me in a specific location and not just “the regs”?

  39. I have a question for you – if an employee has 5 sick days and gets the flu – then misses four days do you count that as FML?
    _________________________________

    Under FML any qualifying time missed over 3 days may become FML.

    However several of your questions are not FML issues. They are policy issues. As an example we have a policy that allows sick time for five consecutive days. That is for all of our administrative people. Our policy extends to the 24 hr shift for 3 days. FML regulations do not mean that you has a company must follow everything to the letter IF your provisions by policy are better or greater than what is provided by FML. You can always do more, you just can’t do less. But if your policies do not live up to the protections as assigned under FML then you will be facing legal actions.

    Also ED. You would be wise if you went to goggle and typed in FML lawsuits. You could also use the HR.BLR.COM web site to research multiples of white papers to familiarize yourself with the consequences of what you are suggesting. Assigning FML is HR 101 and really is so elementary that it should not even be a discussion. Please look further. We are only trying to help you with a error you have in administering FML that will get you sued.

  40. Again – give me a specific source – that shows you can automatically without employee consent or employee request FORCE an employee time off as FML.

    I understand that you are trying to help me but to tell me it is in the regs but not tell me where – ?

    I read all five pages of one quoted source and it does not give authority to designate unrequested FML as FML.

    PLEASE give me an exact source.

  41. ED

    One more thought. You have to remember that the DOL statutes are not inclusive of the hundreds of court decisions that interpret FML administration. That is what you are missing. By contrast if the only thing you ever read about Title VII was the strict plain reading of the statute you would be up the creek.

    Additionally you have to remember that there are 11 Circuit Courts of Appeal around the country. Each one of them may in some manner give a different interpretation of the same FML complaint. As an HR professional it is our responsibility to be cognizant of the different and many interpretive court decisions as applied to FML. Conclusively many have decided employers have rights as well as employees. Employers also have obligations to protect the employee under FML. Both of these issues are handled by assigning FML to qualifying events.

    You are confusing ‘force’ with ‘assign’. If an employee refuses to comply with FML regulatory statutes that employee may be subject to dismissal under the company’s absence policy. It does not matter if they have vacation leave, sick leave or any other kind of leave if the absence falls under FML and the employee refuses to comply.

  42. I’m with Ed on this! Say an employee does not request FML but does gets permission for the time off without penalty. An HR person being smarter than the employee and knowing the employee was out for medical reasons you designate FML, he comes back to work and all is well. Fast forward 4 months, his wife (medical situation for over a year; employee didn’t share this information as it was say a private cancer matter) is finally getting surgery. Employee comes into work with request for FML and a doctors certification. Now what do you do…He has done everything correct. You’d have to assign him FML knowing he is using more FML than allowed by law. Now, wouldn’t other employees have grounds to get more FML than allowed????

  43. Ed you are correct. As noted in the article, employers are not obligated to make an employee take time off as FMLA. It is the employer’s responsibility to inform the employee of their rights and supply them with the proper paperwork. The employee must request FML and then the employer has the right to “designate” that time as FML. Not force the employee to take FML.

  44. I know I seem hard headed but this is really helping me fully understand. I thank you for that.

    If an employee has three weeks of vacation time and six sick days saved up (already earned/ accrued) and the employee does not want to use FML – do you fire them after your policy limit and pay them out the acrrued time?

  45. Ed: My legal reference is Title 29, Part 825, of the Code of Federal Regulations for the actual Family Medical Leave Act. If you look here, you will find the authorization for the employer to require the employee to use paid leave as part of their FMLA. We don’t “force” our employees to use FMLA. We act, within our legal rights, to “designate” their leave as FMLA to assure them that they have job protection and health insurance during their absence.

    Nowhere does the Family Medical Leave Act stipulate it only applies if the employee makes the request. It does give strict instruction as to the responsibilities of both employee and employer if and when that request is made, but it also gives the employer the ability to designate leave they are only aware of as FMLA. There are restrictions on giving this designation retroactively.

  46. Yes, you absolutely can designate a leave as FML even if the employee did not specifically state that they wanted to take FML. In barbi’s example, the original leave cannot be counted against the FML entitlement because the employer didn’t notify the employee that the leave was being designated as FML, however if the employee had designated the original leave as FML then the employer has no more legal obligation to hold a job beyond a total of 12 weeks. That is not to say that some employers are not more generous, just that they do not need to be under the law. An employee request a leave. The employer designates it as FML. An employee need not request FML – just a leave of absence – and it can be designated as FML. An employer forcing an employee to take FML implies that the employer is forcing the employee to take a leave. All the employer is doing, as John stated, is designating the leave that the employee requested.

    And Ed, the employee does not have a choice about wanting or not wanting to use FMLA (unless the company has a policy that allows that). If the employee TAKES a leave it is either FMLA designated or it is not – the employer makes that decision when an employee is out on leave. If you do not designate the leave and you should have (because the employee is out for a qualifying reason and you knew it) then you can open your company up for problems if you do terminate. Having said that, taking paid time off is not job protection unless it is taken in conjunction with FMLA so you can terminate someone who is “on vacation” and not taking FMLA.

  47. LS –

    You could not terminate an employee for absence issues if they are out on a approved vacation time – at least I hopr your company does not do that.

    I really do want to know where you get that info – not to prove you right or wrong but so that I know the correct info and where to find the proof. Our Execs do not listen to – “I know that becuase I have an HR degree” – they want to see the letter of the law and not the entire reg the specific page and paragraph.

    You open yourself to no problems if you advise the emplopyee of their rights and they refuse them. You only face problems if you falsely deny, erroneously designate as unqualified or do not advise the employee of their rights.

    So far no one has been able to tell me exactly where the regs state you can consider time off as FML without employee consent – it makes me wonder –

    If I ever work for an organization that requires FML for every little thing – I will hide all my reasons for sick time and vacation time – I feel I have a right and it is my right to use it when and if I want to.

    I would also be worried that they are looking for every excuse to be able to get rid of employees that they can – hey – force employees to use up FML and then when they need it for a more legitimate reason – they do not have it and we can toss them out the door! I see this as a potential law suit –

    “I didn’t want to use it when I had the flu running through the family – I had sick days and vacation days for that – now my wife is dying from cancer and I cannot be there or I’ll lose my job” I wonder who would win that?

  48. Policies that force FML for time taken off will only shut the door on communication – people will not tell the supervisors reasons for requesting vacation time. Policies that cause doors of communication to slam closed are suspect in court cases – not exactly but on similar lines to fear of retaliation claims. People keep quite because they fear the consequences of communicating facts.

    That is just a little food for thought.

  49. Ed, I suggest you speak with your labor attorney. Ours has been very clear that you should designate when a leave is qualified. Period. You can always be more generous than the law allows, but you can’t go back and designate retroactively if an employee starts to abuse time off policies.

    And personally, I don’t really need to know what employees are doing on their vacation time. If they don’t tell me, they can never accuse me of disciminating against them because of it.

  50. Ed
    You open yourself to no problems if you advise the emplopyee of their rights and they refuse them. You only face problems if you falsely deny, erroneously designate as unqualified or do not advise the employee of their rights.
    __________________________

    Ed you have changed the argument. No one has said or advocated doing any of the things you listed. However none of the things you listed address the legalities of designating FML to employees for qualifying events.

    Ed.
    So far no one has been able to tell me exactly where the regs state you can consider time off as FML without employee consent – it makes me wonder –
    __________________________________________

    Several people including me have given you references and web sites that you could check, Ed. It makes me wonder why you have not checked them or even acknowledged the references.

    You keep talking about apples and oranges with your examples. Ed you do not have to designate anyone in your company as being on FML. That is up to you and rather or not you choose to have FML become an aditional 12 workweek benefit after all leave time is uesd by your employees. That is perfectly legal as long as you apply the same standard to all. On the other hand FML is not an additional benefit. It is simply a 12 workweek period in which the employee has a job proteced status and his/her medical benefits are paid. FML has specific qualifications that an employer may use to designate an employee’s absence as protected. You don’t want to do that, that is legal. Other employers do want to use FML as allowed in the statute that is legal too.

    But my fear for you is that though you have an HR degree you have little understanding of FML. That is what employees will take advantage of. I want my people protected as soon as they qualify. Ther are two events that makes that happen. They are absent for a listed qualifying event and they are absent for the minimal time that qualifyies the event. Please read the references sent you.

  51. Personally, it sounds like this is a grey area that’ll never get clearer. Any of you could get sued for doing as each of you interpret the regulations to be but in the end if you get a judge that didn’t have enough fiber in his diet you could be SOL. Then it gets appealed, then that gets appealed, and on and on and on……..

  52. “I didn’t want to use it when I had the flu running through the family – I had sick days and vacation days for that – now my wife is dying from cancer and I cannot be there or I’ll lose my job” I wonder who would win that?”

    This particualr issue has been through courts many times. The outcome is usually the same. Sensationalism is not a part of FML. Though most employers would offer some type of extention to this type of thing, the issue is that FML allows 12 workweeks of protected leave. If that runs out the employer has no further obligation to the employee.

    Ed you can drop tear jerkers forever, that does not change FML regs.

  53. Yes, John. Exactly. You said it much better than I have been trying to say it all day. Thank you!

  54. LS

    :>)

  55. barbi Says:
    Say an employee does not request FML but does gets permission for the time off without penalty.
    _______________________________

    Barbi this is really simple. If a person request time off all time off is not FML. If there were no triggers that would have alerted you that this was aFML qualifying event and (most importantly) the HR person DID NOT engage in an interactve converstaion about FML then the employee gets the time off.

    Barbi
    An HR person being smarter than the employee and knowing the employee was out for medical reasons you designate FML, he comes back to work and all is well.
    __________________________________

    You can’t go back under the circumstances you discrbed and retroactively apply FML. You missed the ringing of the bell. However if the employee is still out you can designate the remiander of the absence as FML, send them the medical certification forms and move forward from there.

    Barbie
    Fast forward 4 months, his wife (medical situation for over a year; employee didn’t share this information as it was say a private cancer matter) is finally getting surgery. Employee comes into work with request for FML and a doctors certification. Now what do you do…
    _______________________________________

    Here is what I would do. First of all an employee that is not taking FML does not owe HR an explanation of their wife’s medical condition. So him now saying so will elict sympathy but only has to do with FML because he is notifying you that he has a qulaifying event.

    Second thing is if the doctors information does now have the same information as required by the DOL Medical Certification form I would give him that form and allow 15 days for it’s return. Lets say his doctors slip only says that his patient is sick and will be out several weeks. That is not enough information to certify and absence.

    Barbi
    He has done everything correct.
    ______________________________

    Not exactly but nither has the HR person for not having an interactive conversation. The employee took advantage of that and hid the event.

    Barbie
    You’d have to assign him FML knowing he is using more FML than allowed by law.
    _________________________________________________________

    Yes you would have to give him the 12 workweeks. No he is not taking more than the FML allows. He never took any FML leave. That is just the way it will end.

    Barbie
    Now, wouldn’t other employees have grounds to get more FML than allowed????
    ___________________________________________________

    No. There is no situation that would have created those grounds. What the other employees may do however is atempt to play the HR person has the first employee did. Now you have a policy, integrity and behavoral issue not an application of FML issue.

  56. I see and understand LS’s and John’s point about this — designating leave as FML protects the company, but to Ed’s point, this does not create a friendly work environment, and seems contrary to the point of providing sick pay. Time reporting is always in arrears, so do you trigger FML if someone reports sick time on their time sheet?? Other than this, there is no uniform way to enforce that rule, unless there is a policy requiring the manager / supervisor to contact HR. That still gives them 10 business days’ grace period to burn sick time, which I think is more than fair.

    In my case, the company was trying to tell me that I had to not only go on FML, but ALSO on Short Term, which I believe to be illegal.

    Ultimately, if your manager supports you, and as long as corporate policies allow them to get away with it, the manager can do just about anything they want. I worked with a guy who had cancer. His manager knew it would be tough, but didn’t want to lose him as an employee, so he had the guy designated as a remote worker, then had him check in every day via e-mail at 8 and 10. Since he was “at work” for 2 hours, per payroll policy, he got paid for the whole day.

  57. Bob
    Time reporting is always in arrears, so do you trigger FML if someone reports sick time on their time sheet??
    _________________________________________

    No. By the time sick leave appears on the timesheet it will be retroactive to designate it as FML.

    Bob
    In my case, the company was trying to tell me that I had to not only go on FML, but ALSO on Short Term, which I believe to be illegal.
    _______________________________________

    Depending on the state and company policy it could be legal.

    But beyond that you make some interesting points and state the difficulty of administering FML. Yes there is and always will be an issue of what may seem an unfriendly work atmosphere as FML is applied. But not in all cases. No law is perfect and the beginning of FML was not for companies that provided for their employees but for those that had no protection and were summarily dismissed once getting sick. When FML was voted in it then became a broad brush for any company that met the legal terminology.

    Your last paragraph was interesting. Being that doing that for the employee meets payroll policy may seem like a clever way to assist the person. Now let’s look at it a little deeper. Though nothing is out side of policy for this person what if the next similarly situated employee was not as valued, not as productive as this employee that was treated so kindly. If the similarly situated employee is not extended the same benefit then you have a potential lawsuit on your hands. It would not be a case simply that the company was attempting to protect an investment in a valued employee. The old saying is no good deed goes unpunished.

    I agree that FML may sound harsh. We would send out letters while doing business with employees during FML. The letters gave us a chance to ‘soften’ the FML message. Now we have made a decision to only use the DOL forms since the January 16th FML updates. Why? We are a city and have varying departments. Parks, Public Works, Streets, Fire Department, Police Department all are city employees. As a matter of FML regulations we have to administer FML the same for Police as we do for the parks employee that cuts grass. The only way to do that and remain consistent is for all departments to use the same forms. As you know forms can lack the sound of compassion. Ahhhh. . . the joys and pains of HR and FML. Ain’t life grand.

  58. One other point about sick leave. If you would research leave time in the Federal Law you may be surprised that sick leave does not enjoy a statutory protection. Nor does vacation time. Compensation time does. A company, other than past pattern and practice, is not legally bound to honor sick leave. Having sick leave accrued provides no job protection under the umbrella of a law. That may be different if your state has a separate caveat that actually protects leave balances. Virginia has no such provision therefore we default to federal employment statues. With that said even though many may think sick leave is there for their use you may lose that at any time. FML provides that job protection.

  59. oregondiver says:

    Ed, shoot me an email (if you want). I am sensing your frustration. I will give you the phone number to reach Karen at the DOL Employer Assistance FMLA. I usually reach her 80% direct dial, and of the other 20% she calls me back within a day.

    Ignoring your company policies….according to FMLA you can make employee use paid time (provided by ER) at the same time they are using FMLA. THink of it as two separate rail road tracks. Whatever happens on the left (PTO, Sick, Vacation, Holiday) operates at the same time (or independently) as FMLA. So now you just need to determine what your policies say about using paid time WITH FMLA. Our policies say you must use all paid time before going unpaid. And that it run concurrently with FMLA (ie on the other rail road track). So yes, your employer can require to use FMLA AND your paid time off, just check your policies to see if they say otherwise.

    Regarding an ER making an employee use FMLA. The ER has the requirement to provisionally designate FMLA if we are aware of the need for leave. THis provisional approval includes a letter to EE notifying them of their rights and responsibilities. If the EE chooses not to turn in the med cert that we require for all FMLA, then I deny their FMLA. The EE may never ask for leave, I may hear about the FMLA qualifyign event from the gossipmill (ie: helen is having back surgery next week). I provisionally deisgnate, give them 15 days to get me the med cert. If I don’t get the med cert, I deny FMLA. The ER is protected, I am NOT making the EE use FMLA, and their absences CAN count against our discipline policy. It is HER choice not to take advantage of these federal protections, and now she can’t come back later saying she wanted it since she received 3 letters from me about it (provisional designation, late reminder letter and then denial letter).

  60. oregondiver says:

    Ed, I didn’t see my email addy show up. If you want to call her about the rules, email me at oregondiver@hotmail.com. Shell.

  61. Ed

    One thing. I said in a previous post that you knew little about FML. That was wrong. You may very well know all the other requirements that FML incorporates. I should have said that this one area needs rethinking and not commented on your general knowledge. I apologize for that.

  62. John –

    No apologies needed – I take very little personally on forums and never assume comments to mean more than the comment is on face value. You are trying to help me understand and I am thankful for that – I have just been up against the need for several sources of proof for anything that I bring up. That is why I ask for exact references.

    I hope that everyone has a great weekend –

  63. Thanks Ed. You too have a great weekend.

  64. oregondiver says:

    Hey John, I think you may want to review the new regs signed into law 01/16/09. Comp time does not have protection anymore from what I recall. CFR 825.207 Use of Paid Time.
    Shell

    john Says:

    March 11th, 2009 at 8:07 pm
    One other point about sick leave. If you would research leave time in the Federal Law you may be surprised that sick leave does not enjoy a statutory protection. Nor does vacation time. Compensation time does. A company, other than past pattern and practice, is not legally bound to honor sick leave. Having sick leave accrued provides no job protection under the umbrella of a law. That may be different if your state has a separate caveat that actually protects leave balances. Virginia has no such provision therefore we default to federal employment statues. With that said even though many may think sick leave is there for their use you may lose that at any time. FML provides that job protection.

  65. Thanks! I will. Learned something today.

  66. Thank you

  67. I could really use some feedback on a FMLA issue I am having.

    I had a baby and requested FML. I was advised under FMLA I am allowed 12 weeks absence in any 12 month period. They indicated since I has already used 4 weeks FMLA (Back surgery out 2 months but 4 weeks falls with in rolling 12 month period) that would leave me 8 weeks available under FMLA. I will be allowed 6 weeks of sick time and my 2 weeks vacation. I was given paper work that reflected request for paid/unpaid leave Family Medical Leave Act 1993 (Certification of Physician). Which has already been completed and returned. Where I have my problem is with the previous time being counted against my FML. When I had my back surgery I was never informed/notified or advised this time was being counted against my FML. I didnt even know until now that sick time was or could be counted towards FML. (Do now!) I was NOT given any FML forms or statements to be complted by my Dr. The only form I signed was an extended absence due to medical reasons form which indicated I had 90 days of sick leave available. I am heartbroken that I will not be able to spend this extra month with my sweet baby boy. I tried to appeal to my managers for additional time. Due to length of service and reputation with company I thought I would have no problem but they want to keep things uniform and if they give me extra time feel they will have to give to others. I let them know I was not notified that my previous leave was designated and counting against my FML but they do not seem to care 🙁

    Any advice you can give would really help! Thanks

  68. Jackie:

    If you were not notified that the time for your surgery was designated at FMLA, it can’t be retroactively designated. You need not have completed doctor’s certification necessarily (that is the employer’s choice) but notification is mandatory. Good luck.

  69. oregondiver says:

    Jackie, I pulled this statement from the final regulations:
    Additionally, the Department proposed in § 825.301(d) that in all cases where leave is FMLAqualifying, an employer and an employee can mutually agree that the leave be retroactively designated as FMLA leave. Proposed § 825.301(e) clarified that, if an employer failed to timely designate leave and if an employee establishes that he or she has suffered harm as a result of the employer’s actions, a remedy may be available.

    What it is saying is that if you were not notified of the FMLA designation from your earlier event (they should have written documenation sent to you to back up their contention that they DID!), then they cannot retroactively designate it as FMLA because in your situation (very valid), it would definately be defined as “suffered harm”. You can point them to the regulation I have pasted above.

    But the good news, in case you haven’t noticed it yet…is because your employer is on a rolling calendar year (as you mentioned above)…each month that passes on FMLA (for new baby), another month should fall off due to the other condition (if your other condition was a consecutive period of time where some of it had already fallen off as you mentioned above). So you would be able to use up to the 12 weeks allowable under FMLA with your baby. 🙂

    you can email me at oregondiver at hotmail dot com if you wanted to give me your specific dates and I can run your exact leave time avail if you wanted. shell

  70. oregondiver says:

    I forgot to mention…depending on what state you are in, you might be entitled to other/additional leave. Such as in Oregon, you can get up to 12 weeks of pregnancy disability (including recovering from birth!). THEN 12 weeks of parental leave (aka bonding time) once you have recovered from birth. Oh yea, and we give up to 12 weeks of sick child leave (non-serious health condition of child) if you used the stuff above.

  71. Thanks! So if notification is mandatory and they didnt give it to me then where does that leave me?

    I live in Texas.

    My employer indicated 12 weeks leave available in the last 12 months. Maternity leave effective 2/9/09. Go back to 2/9/2008 and I was out a total of 20 days or 4 weeks (Feb and March. 2008 most of those 1/2 days)

    If I do not report at the end of 8 weeks, I will loose my job. HR even asked me if I had known I was under FML previously would it have made a difference. That blows my mind. My answer yes.. planned pregnancy (although who knew it would happen 1st month) I would have waited another month to try. This way when it came time to take FML with my baby, I would have the full 12 weeks. I need this time. I am nursing and that extra 4 weeks is critical! I found out about a week before my baby was born that I was eligible to only take the 8 weeks and that the time out with my back surgery was considered FML.

  72. oregondiver says:

    OK, I dont’ know texas rules, so won’t even try for those. However…

    As of 02/09/09 you hvae 8 weeks of FMLA available, and they are on a rolling calendar year, then on 03/09/09 you STILL have 8 weeks available since you took 4 weeks of leave from 02/09/08-03/09/08 since it falls back ONTO the books.

    Step 1: Go to your HR person and ask for proof of their notification to you at that time. If they cannot provide it, then you are done. They cannot count it retroactive. Call the Department of Labor if they try to stick to their guns.

    Step 2: If they have proof they mailed you letter advising you of rights/responsibilities (and you don’t remember receiving it), then you go to the first scenario I mentioned above. The calendar year rolls…ask them why it isn’t rolling for you. As of 03/09/09, you should have a FULL 8 weeks available to you since time in Feb 08 dropped off the rolling 12 month calendar year. Call the DOL if your employer tries to say otherwise. Leave emotion out of it, just stick to the law. You are entitled to 12 weeks to be with a new baby regardless of whether you go on a cruise with it, or are nursing or you adopted. Same 12 week standard applies.

  73. ok, thank you.

    One thing I want to clarify is the 12 month period. My employers exact words were I am allowed 12 weeks of absence in any 12 month period. They count the date my maternity leave started 2/9/09 and go back 12 months, which is 2/9/08. I may have used the word rolling where it should not have been used.

    Thanks for reminding me to leave emotion out of it, and stick to the law. This is what protects me.

  74. Does FML work off a rolling calendar year? How does that actually work?

    See my above post from 5:50 3/24. Thanks to anyone who may reply!

  75. The company chooses the type of calendar that they wish to use.

  76. There are 4 ways that the 12 months can be calculated and it is up to the employer to determine which way they calculate – this is an excerpt from the DOL website:

    Employers may select one of four options for determining the 12-month period:

    -the calendar year;
    -any fixed 12-month “leave year” such as a fiscal year, a year required by State law, or a year starting on the employee’s “anniversary” date;
    -the 12-month period measured forward from the date any employee’s first FMLA leave begins; or
    -a “rolling” 12-month period measured backward from the date an employee uses FMLA leave.

  77. Does anyone know how the law responds to this senerio?

    Baby was born in New Jersey on March 26, 2009.
    The mother only has 6 weeks disability and that will be up in Mid May… Not eligible for FMLA due to (working for a company with under 50 employees)

    Will she be able to pick up the 6 weeks PAID FMLA as of july 1??

    fyi: baby was preemie arriving 7 weeks early…(baby is still not home, but should be home by the end of april. ) so, the mother will only get 2 weeks of bonding at home if he is released as expected.

  78. Just a quick clarification: The new NJ leave law is NOT FMLA – it is paid leave and similar to disability leave, ie., it does NOT offer job protection. She would be eligible however as long as she has worked at least 20 weeks in NJ and earned at least $7,150 during the prior 12 months. The 50 employee threshold does not apply to NJ Paid Leave.

  79. LS thanks for you comments.
    I just wasn’t sure if she’d qualify because the two leaves will not be concurrent.
    thanks again. mer.

  80. She would have up to 12 months from the birth of her child to take Paid Family Leave for bonding.

  81. I’m a friend of Mr. Righi and would like to clarify the “rest of the story” from the brief information listed from this web site.

    1) Righ never said he never wanted FMLA act, the rest of the statement is “I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time. I hope you can understand my situation and approve this emergency time off. I will be very busy the next couple of days to get things arranged so I might be slow getting back to you” This is only a part of the e-mail the rest explains the situation and how he wants to resolve this situation so it will not interfere in the future as it has one day at a time in the past.

    Righi was asking for guidance but hoping for vacation approval so he would be paid. He was listing his options and stating which he preferred …the “at this time” would mean if not approved for vacation he could revisit the decision. He never received a reply from his manager as he usually never did in the past when he took one day at a time and this time decided to resolve the situation with a couple of days. Which by the way, a couple of days could mean “a few, several” according to the dictionary.

    2) Manager tried calling 14 times. a week after finally returning the call.

    14 calls is true, except it was not a week. In the past Righi always turned off his company cell phone on vacation and his manager knew this. He had four days of vacation and during the four days his manager called 14 times. Contact in the past was always on Righi’s home phone and his manager knew this. When his manager finally called his home phone he was informed it was taking longer than expected and was informed he needs to “wrap this up.” When his manager called after the two days, Righi returned his call within five minutes and was informed by his manager to return to work the next day. He was not informed that he was “fired.” Righi returned to work and worked four hours, there was a warning on his manager’s computer. The HR manager called and told his manager to fire Righi.

    The HR manager had a grudge against Righi. Earlier Righi and his manager proved the actions of the home office lost a large dollar potential from a customer and she was part of it. During the training Righi was in when he was notified about his mother and left to care for her, HR made comments referring to the procedure which lost the customer and tried to make Righi look bad with out mentioning his name.

    The company said Righi never asked for vacation time off and there for terminated him.

    Does anyone take the sentence as not asking for time off ?

    ” I do have the vacation time, or I could apply for the family care act, which I do not want to do at this time. I hope you can understand my situation and approve this emergency time off. I will be very busy the next couple of days to get things arranged so I might be slow getting back to you”
    as not asking for time off?

    The case is in appeal.

  82. This blog has been very informative. I am looking forward to the feedback on my situation.
    I was out on unexpected medical leave. I submitted doctor’s note after each follow up visit to keep my employer informed of my status.
    After almost 12 weeks I returned but was only working part time and then back to full time.
    I have had a set back and my doctor wants me to be non weight bearing and totally off my foot.
    My question is that I was never offered or had FMLA explained to me by my employer. I paid weekly for my health insurance during the time I was out. If it was never designated as FML now that I need to be out again can I request FML? If my employer states that I have already used 12 weeks time and he may have to let me go do I have the right to request FML and be within my legal rights as it was never explained or offered to me when I was originally out on medical leave?

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