 |
 |
 | |
III. Federal Law - Family Medical Leave Act (FMLA) Questions & Answers
Q: I was put on bed rest for four weeks during my second trimester. Can my employer count those four weeks against the 12 allowable weeks of FMLA leave for the birth and care of my child?
A: Yes. An eligible employee can take a total of 12 weeks of FMLA leave in a 12-month period. If you have to use some of that leave for another qualifying reason, including pregnancy complications, it will be counted as part of your 12-week FMLA leave.
Q: Can my employer count time I take on maternity leave (after the birth of the baby) or pregnancy disability leave (due to pregnancy complications) as FMLA leave?
A: Absolutely. Both types of leave are considered qualifying FMLA leave for a serious health condition and can be counted in the 12 weeks of leave. Your employer must properly notify you in writing if it chooses to designate these types of leave as FMLA leave.
Q: If my employer didn’t tell me that my leave is going to be considered FMLA leave, can it count the time I have already been off against my 12 weeks of FMLA leave?
A: Your employer must notify you in writing that your time away from work is being officially designated as FMLA leave. Your employer cannot generally decide that your leave is FMLA leave in hindsight. If your employer was not aware of the reason for the leave, however, leave can be designated as FMLA leave retroactively as long as your leave is still in progress or within two business days of your return to work.
Q: Am I allowed to use accrued sick time as part of my family leave in order to be paid for this time away from the office?
A: FMLA allows you to substitute paid sick leave for unpaid FMLA leave. However, there are some limitations – you and your condition must still qualify for sick leave under your company’s policies. You should be able to use sick leave for unpaid FMLA leave if it is for your own medical condition. It is possible that you will not be allowed to substitute paid sick leave if you are requesting leave solely to care for your new baby.
As you know by now, FMLA generally requires unpaid leave. It also provides for substituting appropriate paid leave for the unpaid leave though. You may elect - or your employer may require you - to substitute any of your accrued vacation days, sick days, paid time off, comp time, personal leave, or family leave. It is definitely possible that your company will not approve your use of paid sick leave if you are requesting leave to care for your child, with or without a serious health condition.
This is okay under FMLA. If you cannot take a sick-leave day to care for a sick child, then you will not be able to substitute sick leave for FMLA leave to care for a sick child. If your employer allows employees to substitute sick days when they need to care for a sick child, then you should be allowed to substitute sick days for unpaid FMLA leave days to do so.
A: Yes. An eligible employee can take a total of 12 weeks of FMLA leave in a 12-month period. If you have to use some of that leave for another qualifying reason, including pregnancy complications, it will be counted as part of your 12-week FMLA leave.
Q: Can my employer count time I take on maternity leave (after the birth of the baby) or pregnancy disability leave (due to pregnancy complications) as FMLA leave?
A: Absolutely. Both types of leave are considered qualifying FMLA leave for a serious health condition and can be counted in the 12 weeks of leave. Your employer must properly notify you in writing if it chooses to designate these types of leave as FMLA leave.
Q: If my employer didn’t tell me that my leave is going to be considered FMLA leave, can it count the time I have already been off against my 12 weeks of FMLA leave?
A: Your employer must notify you in writing that your time away from work is being officially designated as FMLA leave. Your employer cannot generally decide that your leave is FMLA leave in hindsight. If your employer was not aware of the reason for the leave, however, leave can be designated as FMLA leave retroactively as long as your leave is still in progress or within two business days of your return to work.
Q: Am I allowed to use accrued sick time as part of my family leave in order to be paid for this time away from the office?
A: FMLA allows you to substitute paid sick leave for unpaid FMLA leave. However, there are some limitations – you and your condition must still qualify for sick leave under your company’s policies. You should be able to use sick leave for unpaid FMLA leave if it is for your own medical condition. It is possible that you will not be allowed to substitute paid sick leave if you are requesting leave solely to care for your new baby.
As you know by now, FMLA generally requires unpaid leave. It also provides for substituting appropriate paid leave for the unpaid leave though. You may elect - or your employer may require you - to substitute any of your accrued vacation days, sick days, paid time off, comp time, personal leave, or family leave. It is definitely possible that your company will not approve your use of paid sick leave if you are requesting leave to care for your child, with or without a serious health condition.
This is okay under FMLA. If you cannot take a sick-leave day to care for a sick child, then you will not be able to substitute sick leave for FMLA leave to care for a sick child. If your employer allows employees to substitute sick days when they need to care for a sick child, then you should be allowed to substitute sick days for unpaid FMLA leave days to do so.
Q: While I was halfway through my maternity leave (designated as FMLA leave) from a “covered employer”, I was informed that my job was eliminated and I would be getting severance payments. Is this a violation of the FMLA?
A: You will need to prove that your employer terminated you because you took FMLA leave in order to win a Labor Department charge or lawsuit. If your employer can prove that your job would have still been eliminated even if you had been working, then you will not prevail against your employer. You can file a complaint with the Department of Labor or ask if any other similar or equivalent positions are available in the company. Even if your original position had not been eliminated, FMLA does not entitle you to your job back, just an equivalent job.
Q: My baby was born premature. When she comes home, she will require additional care. My employer allows employees to take up to five days of sick leave each year for the care of family members. I have accumulated over two months of sick leave over the years though. Could I use part of my accumulated sick leave to care for my baby, or do I have to take unpaid leave? Can I be forced to take unpaid leave even though I have acquired so much paid sick leave?
A: You will probably be forced to take unpaid leave. FMLA allows your employer to restrict the substitution of paid leave for unpaid FMLA leave. If the general policy is that you can only take five paid sick days each year to care for ill family members, it is likely that you will not be allowed to substitute more than five sick days for unpaid FMLA leave. You may still be able to substitute vacation days or other forms of paid leave.
Q: I would like to take FMLA leave after my baby is born in a few months. If I take up to the 12 weeks of leave that I am eligible for, and I find a new job while I am on FMLA leave, will I have to reimburse my employer for any of the health insurance premiums or other benefits it has paid during my leave? If I return to this employer after my leave and then give notice that I quitting, will I have to pay my employer back for anything?
A: Your employer has the right under FMLA to seek reimbursement from you for the cost of benefits you received if you do not return to work. Your employer is required to pay these benefits and hold your job open while you are on leave. It only seems fair that you pay them back for those benefits if you don’t return to work.
Regarding the second question, under FMLA, an employee who returns to work for 30 days is considered to have returned to work for purposes of the FMLA to avoid liability for health insurance premiums. So, your “notice” will need to be a more than the standard two weeks.
Q: I am a schoolteacher and would like to use some of my FMLA maternity leave before school is over for the year and then use the rest of it when school starts again in the early fall. Can I do this?
A: Special FMLA rules apply to employees of public school districts and private schools (but not colleges or universities). Assuming that you qualify under these special rules, leave taken for a period that ends with the school year and begins the next semester is considered to have been taken consecutively rather than intermittently. The summer months when school is not in regular session are not counted against your FMLA leave entitlement.
A: You will need to prove that your employer terminated you because you took FMLA leave in order to win a Labor Department charge or lawsuit. If your employer can prove that your job would have still been eliminated even if you had been working, then you will not prevail against your employer. You can file a complaint with the Department of Labor or ask if any other similar or equivalent positions are available in the company. Even if your original position had not been eliminated, FMLA does not entitle you to your job back, just an equivalent job.
Q: My baby was born premature. When she comes home, she will require additional care. My employer allows employees to take up to five days of sick leave each year for the care of family members. I have accumulated over two months of sick leave over the years though. Could I use part of my accumulated sick leave to care for my baby, or do I have to take unpaid leave? Can I be forced to take unpaid leave even though I have acquired so much paid sick leave?
A: You will probably be forced to take unpaid leave. FMLA allows your employer to restrict the substitution of paid leave for unpaid FMLA leave. If the general policy is that you can only take five paid sick days each year to care for ill family members, it is likely that you will not be allowed to substitute more than five sick days for unpaid FMLA leave. You may still be able to substitute vacation days or other forms of paid leave.
Q: I would like to take FMLA leave after my baby is born in a few months. If I take up to the 12 weeks of leave that I am eligible for, and I find a new job while I am on FMLA leave, will I have to reimburse my employer for any of the health insurance premiums or other benefits it has paid during my leave? If I return to this employer after my leave and then give notice that I quitting, will I have to pay my employer back for anything?
A: Your employer has the right under FMLA to seek reimbursement from you for the cost of benefits you received if you do not return to work. Your employer is required to pay these benefits and hold your job open while you are on leave. It only seems fair that you pay them back for those benefits if you don’t return to work.
Regarding the second question, under FMLA, an employee who returns to work for 30 days is considered to have returned to work for purposes of the FMLA to avoid liability for health insurance premiums. So, your “notice” will need to be a more than the standard two weeks.
Q: I am a schoolteacher and would like to use some of my FMLA maternity leave before school is over for the year and then use the rest of it when school starts again in the early fall. Can I do this?
A: Special FMLA rules apply to employees of public school districts and private schools (but not colleges or universities). Assuming that you qualify under these special rules, leave taken for a period that ends with the school year and begins the next semester is considered to have been taken consecutively rather than intermittently. The summer months when school is not in regular session are not counted against your FMLA leave entitlement.
FMLA also provides that you, as an instructional employee who is on FMLA leave at the end of the school year, must be provided with any benefits over the summer vacation that you would normally receive if you had been working at the end of the school year.
The rules for intermittent leave are a little different for teachers as well. If an “eligible instructional employee” needs intermittent leave to care for a sick baby or for her own pregnancy-related “serious health condition,” and the intermittent leave time adds up to more than 20 percent of the total number of working days from the beginning to the end of the complete leave period, the school can require the employee to choose either to:
• Take leave for a block, or blocks, of time beginning no earlier than the first day for which leave is needed and ending no later than the last day on which leave is needed, and may include one uninterrupted period of leave, not greater than the duration of the planned treatment; or
• Transfer temporarily to an available alternative position for which the employee is qualified, which has equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee’s regular position.
For example, if a teacher who normally works five days each week needs to take two days of FMLA leave per week over a period of several weeks, the special rules would apply.
If a teacher does not give required notice of foreseeable FMLA leave to be taken intermittently or on a reduced leave schedule, the school district may require her to take leave of a particular duration as opposed to intermittent leave, or to transfer temporarily to an alternative position.
Proceed to - Maternity Leave State Law
