FMLA Rights?

Question

I am currently eligible for FMLA through my present employer (a county agency in Ohio) for the upcoming birth of my child at the end May and wish to take the full 12 weeks to care for the child. It is my understanding that I only need to file for FMLA 30 days prior to taking FMLA, however, my employer is telling me that I needed to file as soon as I found out that I was pregnant. The only reason that they are giving me is that pregnancy can also be counted as an “ongoing medical condition” and that they can subtract any time that I take off for doctor’s appts from that 12 weeks. Furthermore, rumor has it from individuals who have taken FMLA for maternity leave in the past is that they make you use FMLA retroactively for dr’s appts. My intentions are to file for FMLA leave at the end of March, however, I was given the FMLA papers on 1/25 and was told that they needed to be returned within 2 weeks. Legally, are these things that employers are allowed to do?

I know that 29 CFR 825.112 states:

“a) 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;

…

(4) Because of a serious health condition that makes the employee unable to perform the functions of the employee's job.

…

c) Circumstances may require that FMLA leave begin before the actual date of birth of a child. An expectant mother may take FMLA leave pursuant to paragraph (a)(4) of this section before the birth of the child for prenatal care or if her condition makes her unable to work.”

Since section c) of the statute does not state “shall” with regards to prenatal care and uses the language “an expectant mother may…” It is my understanding that it is my choice as to how the FMLA is used. Is this correct?

Answer 1

Unfortunately, they can deduct doctors appts from the 12 week limitation.

It does appear that your work is being a bit "overbearing" with the rules though. I believe you should be prepared to fight your work. I would gather any evidence that you can get that the working environment is unfair to pregnant women. Get names, numbers, dates, and any evidence that your employer has treated "pregnant women" different from anyone else. Do this quietly.

After you gather some evidence. Talk to your HR person about your concerns. Let them know you have reviewed your rights under FMLA and are quite concerned at their interpretation of the ruling. That puts the company on notice you are not dumb and if they try to take advantage you will file for protection under the US EEOC (http://www.eeoc.gov/)

Good luck

Answer 2

The way Title 29 of the US Code of Federal Regulations, Part 825 (the regulations governing the enforcement/implementation of the FMLA) are written, there is a tremendous pressure on the employer to be very proactive in granting FMLA leave (see especially 29 CFR 825.302). However, if the leave is unpaid, the employer can not enforce any more stringent requirements on you than what the FMLA allows (if you are using paid time off running concurrently with your FMLA, though, you may be required to follow your employer's rules for using the paid time). You may also find this bit from 29 CFR 825.207(c) helpful: "If the employer has the requisite knowledge to make a determination that the paid leave is for an FMLA reason at the time the employee either gives notice of the need for leave or commences leave and fails to designate the leave as FMLA leave...the employer may not designate leave as FMLA leave retroactively,
and may designate only prospectively as of the date of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the Act, but none of the absence preceding the notice to the employee of the designation may be counted against the employee's 12-week FMLA leave entitlement."

Nancy S.'s advice was spot on in terms of collecting evidence, and doing so quietly and while maintaining spot-on attendance and uninterrupted productivity. However, the FMLA is such a complex law with so many conflicting legal decisions, you may also want to call the US Department of Labor's Wage and Hour Division, the agency that enforces the FMLA, and explain your situation to one of their investigators. They can help you determine if your employer is acting in violation and if so, even call your employer on your behalf to try to straighten things out. You can reach them on the web at www.dol.gov, or toll-free at 1-866-4US-WAGE.

Hope this helps.

Answer 3

You employer is wrong in telling you when to take FMLA. Here is what you need to do. DOCUMENT everything. who, what, where, and at what time. You can file your FMLA now and take when the baby is born. Technically you put your employer on FMLA notice when you requested paperwork. Dont assume anything. Get an employment attorney. dont forget "EMPLOYMENT ATTORNEY". It sounds like your attorney is going to play hard ball. You can beat them if you follow the rules. If you get terminated under FMLA violation the courts dont pay Huge. You get the equivlant of 1 year pay & benfits (lumped into a cash payment), and the jury can award comsempatory damages that double it. So if you make 50k you get 100k. The whole thing will probably get settled out of court for 75-100K. Lawyer gets 25%. Good luck with everything,

Answer 4

Yes, they are only required to give 12 weeks, but it is at the employers discretion to extend it. I know people that have taken off for a year to care for a dying parent. Of course there are ways to get time off for disability after your FMLA is up, the doctor could put you out for stress.

Answer 5

You can't file for FMLA for something that MIGHT happen, like the inflamations, unless you already have them and are unable to work per doctor's orders. If you will have to be off work for an extended period when you have the surgery on your other leg, you can file for it then.

Answer 6

I'm an employment law atty. The other answers were correct, but Nancy S's was great. Do what Nancy suggested. You might end up with a real good case if they give you any difficulty. My employer does not do this, but I work for a local government.

Answer 7

It's true. They can deduct all kinds of time from the 12 weeks, including vacation. That's the law.

Answer 8

sh-it out the puppy and get back to work