Fmla

[Davidc]

What is the name of your state (only U.S. law)? Massachusetts

Good Morning,

I know of a situation where a husband and wife work for the same company. The wife is about to go on FMLA in order to have twins and is planning to be out for 16 weeks which I beileve is the amount allowed under FMLA for twins. Her husband was out sick for a medical condition for 2 weeks back in January of this year and used sick time that he had accumulated. The 2 weeks was not planned ahead of time.

The employer is now telling the husband that he needs to fill out the forms necessary to take that sick leave under the FMLA (after the fact) or he will face disciplinary action for failing to do so.

The issue here is that since the husband and wife work for the same employer they are JOINTLY only allowed so much time under FMLA and the employer will benefit by decreasing the wife's FMLA time for the maternity leave by the two weeks. Is this legal??

 

[cbg]

You are confusing two different laws, one Federal and one state.

Under Federal FMLA, there is never more than twelve weeks protected time off. No matter what the circumstances, FMLA is for twelve weeks, period. Not 12 weeks per condition, 12 weeks per 12 month period (however the employer measures the 12 week period). And any time that is common to both husband and wife is split between them.

Under Massachusetts state law, a female employee who is giving birth is entitled to 8 weeks per birth. MCAD has decided that this means a woman who is giving birth to twins is entitled to 16 weeks. This can and does run concurrently, as far as it goes, with FMLA, but it is separate from FMLA since it is state provided leave and not Federally provided. Also, the Massachusetts law applies only to the mother and not to the father; it is not baby-bonding leave but disabilty leave. The father is not giving birth.

Since the father has already taken two weeks of time off previously, HE is only entitled to ten weeks for the birth if the previous time is designated FMLA, and and FMLA leave that his wife takes reduces still further the amount that he can take. He is not entitled to any of the MA leave. The fact that he used sick time does not mean that it cannot be classified as FMLA.

However, the flip side is that any time he takes reduces the amount of FMLA time that the wife can take, although it does not reduce the amount of MA leave time she can take. SHE is still going to be entitled to 16 weeks of leave regardless, though not all of it will be designated as FMLA.

Initially, when it was first signed into law, it was determined that time could not be designated as FMLA retroactively. The DOL, if asked, will often still maintain that. There has been a landmark SCOTUS case since then, however, stating that as long as the employee receives all the time he or she is entitled to, they are not entitled to additional time just because the time was not designated as FMLA initially. In this specific case, I don't even want to try to figure out if that case law applies since in one sense it affects the wife's time as well, but in another sense it doesn't because with the state law in place, she'll get all the time she is entitled to under FMLA and more. On the other hand, her time affects his time.

So to your question, Is this legal? I'd ask that of an experienced employment attorney who practices in MA. There are far more ramifications to this one than I think a message board can handle.