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Medical leave or FMLA?

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Lara86

Guest
What is the name of your state? Georgia

I have worked full-time for 4 3/4 years for a daily newspaper with approximately 100 employees. I have never requested any medical leave until now. I am scheduled for extensive outpatient foot surgery next month which will require 6 to 8 weeks recovery time.

According to my employee handbook, my employer offers an unpaid medical leave of absence of up to 16 weeks. Any paid vacation, sick leave, short-term disability or worker's comp has to be taken concurrently. If an employee is eligible for FMLA, the medical leave also has to be taken concurrently. Under the medical leave policy, the first six weeks is job-protected. If the employee is not able to return during the period of job-protected leave (6 weeks/medical leave or 12 weeks/FMLA), the employee will be replaced and he or she is only entitled to reinstatement if a job is available.

That's what the handbook says. However, when I requested leave, the personnel manager did not mention FMLA. She said they have two medical leave policies -- one for six weeks and one for 12. Your job is only protected under the six week policy. They gave me, my supervisor and my doctor one form each to fill out and return, none of which mentioned anything about FMLA. Mine only refers to the company's "Medical Leave Policy," for which it says I am eligible for if I am a full-time employee and cannot work due to my own medical condition. No mention of lack of FMLA eligibility.

It seems to me that according to the handbook they have this nice benefit for people who have been employed for less than 12 months, and FMLA is available for everyone else, but when it comes down to it they don't abide by the handbook and treat everyone as if they are not FMLA-eligible in order to shorten leave time-- hoping no one questions it. Are my suspicions correct? Because I don't otherwise understand why I would not be considered FMLA-eligible.

I have done a lot of research on FMLA. I also read that if a company has a medical leave policy apart from FMLA, they cannot combine the two. The employee is entitled to whichever one is the most beneficial to them. If my company's 16-week medical leave policy must be taken concurrently with 12-week FMLA, which one takes precedence? How long would my job be protected, 6 weeks or 12? I also have short-term disability payroll deducted, so I will be using that concurrently with whatever leave I'm entitled to.
I'm so confused! And worried that I won't have a job to come back to if I have to be out longer than six weeks. This is my dream job that I have waited all my life for, and I don't want to lose it. So, as you can imagine, I've been losing some sleep over this. Hope someone can help ... I'm getting really tired. ;) Thanks.
 


rmet4nzkx

Senior Member
Of course you have gone to the FMLA site with the US DOL and can refer them to the FMLA policy and ask them for the FMLA papers for your dotor to fill out. It is confusing not seeing the handbook, but when they mean taking it concurrently is in reference to getting paid because FMLA is 12 weeks unpaid but guarentees your job upon return and be careful how they count the days, your counting of 12 weeks may not be their's and if they are using a calendar, rolling or fixed year. Make sure you are all on the same page, also if you can take your vacation fro this year and hold over or combine with next year that might also give you more time.

One thing I would suggest is if you have any vacation time take that at the begining when you have the surgery, then that won't overlap any of your other benefits and could potentially extend your time a bit or add a buffer. So if you have 2 weeks vacation take that first, then sick leave, usually after x days it becomes STD and you have to be careful when they start counting FMLA but it will at least start at the begining of your sickleave but not vacation. If you have 12 weeks of STD paid you will get paid during the entire 12 weeks, if less, then you will not be paid the entire time, if you are allowed 16 weeks STD but go over the 12 weeks then they might replace you. If this is workers comp related other things fall into place.
 
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Lara86

Guest
No FMLA mentioned

I think I may not have explained myself clearly.

FMLA is ONLY mentioned in the employee handbook. When I requested leave, the personnel manager did not verbally mention anything about FMLA at all. According to her, the only job-protected medical leave I get is six weeks -- period. Anything longer than that is not job-protected. What she's talking about is their medical leave policy which is intended for employees who are not FMLA-eligible (according to the handbook). I AM FMLA-eligible, so therefore my job should be protected for 12 weeks instead of just 6. See, she didn't tell me whether or not I am FMLA-eligible; nor did any of the forms she gave me mention FMLA at all. The only policy mentioned was the six-week thing. I have also not been given anything in writing regarding my FMLA eligibility status and my rights & responsibilities under the Act.

I did have to do some things that are required under FMLA, like notify them 30 days in advance, get medical certification from my doctor and pay my insurance premiums during my leave. It's just the leave time that's all screwy.

When I requested medical leave, it was like FMLA did not exist and the only policy available was the six week leave (even though the employee handbook plainly states otherwise). I'm thinking they are trying to skirt around the issue in order to limit leave time that eligible employees are entitled to and hoping no one questions it. They do the same thing with overtime (do comp time in lieu of overtime and all overtime has to be approved in advance, otherwise the employee will be disciplined or terminated). The handbook does not mention comp time. I could be wrong, but going by all the research I've done I don't think I am.

Hopefully this will make my problem a little easier to understand. Thanks for trying to help.
 
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rmet4nzkx

Senior Member
They don't have to inform you about FMLA, you ask them for the FMLA forms. It does sound like they are trying to avoid it so expect a fight, print out the qualification information from the DOL site take it along with what is in you handbook and request the forms, if it is not all settled first you risk losing your job and fighting to get it back when you are least likely to be up to it.
 

cbg

I'm a Northern Girl
SOMEONE is confused about how FMLA and company medical leaves work together, but I can't tell if it's you, your personnel manager, or both of you. I suspect it's both of you. I also suspect that you have a much more clear idea of how it works than your personnel manager.

I'm going to be very, very basic in explaining this for purposes of overall clarity. Please don't be offended if I define something that is already clear to you.

FMLA is available to any employee for which ALL of the following are true:

1.) The company has 50 or more employees within a 75 mile radius
2.) The employee has worked for the company for a minimum of 12 months
3.) The employee has worked a minimum of 1,250 hours in the last 12 months
4.) The employee has a "serious health condition" as defined under the statute.

If all four of the above are true, the employer MUST provide FMLA leave; if any one of the above four statements is NOT true, then the employer MAY NOT offer FMLA leave.

I'm going to emphasize that. There is nothing optional about this. Neither the employer or the employee has any choice here. If all four of the above statements are true, the employer MUST provide FMLA leave; if even one of them is not true, the employer MAY NOT provide FMLA leave. If FMLA leave is provided, the employee DOES NOT have the option of saying, "No, I don't want this to count towards my available FMLA leave".

If everything in your post is accurate, I don't see any possible way that you do not qualify for FMLA.

Under the FMLA statute, the employee may request OR the employee may require that any vacation, sick, personal or other paid leave run concurrently (i.e. at the same time with) the FMLA leave. You do not get to take your paid vacation and sick time, and THEN start your 12 weeks of FMLA, unless your employer says you may. Few will. Ms. Cupcake is mistaken about that. The employer CAN allow that, but they do NOT have to.

It is also possible to have STD run concurrently with FMLA - in fact, that frequently happens. However, they do NOT have to hold your job until the STD expires. After the FMLA runs out, they MAY terminate you, no matter how legitimate the need for additional leave may be and no matter how much additional STD or even LTD time you may have available to you. Unless your state law specifically says otherwise (your state does not) your employer is not obligated under ANY circumstances to continue to hold your job longer than 12 weeks. (For the sake of thoroughness, I will add that IF the ADA ALSO applies, which is not always the case and in fact is seldom the case, a SHORT extension of the leave MAY in some circumstances be considered a reasonable accomodation, but is not mandatory. Nothing in your post even remotely suggests that the ADA would apply - I mention this only for completeness.)

HOWEVER. A company policy DOES NOT supercede FMLA. They CANNOT stop protecting your job after only 6 weeks if you qualify under FMLA. They MUST allow you up to the full 12 weeks if your medical condition requires it. By that I mean that if you are medically released for work after 8 weeks, you don't get to stay out for 12 - you go back after 8. (There is one exception to that, but it does not apply here.) But a company policy allowing only 6 weeks is worthless if FMLA applies.

You are mistaken, by the way, that a company policy and FMLA cannot be combined. They can. But company policy is only a company policy - FMLA is the law. They MUST comply with FMLA - they are not legally obligated to comply with their own policies. In a situation like this, when a company policy provides less protection than FMLA, they must comply with the one that provides better benefits, because the one with better benefits is the law. But if the company provided a total of 16 weeks benefits, they COULD still term you after only 12, because 12 is all the law requires. (They had, however, better be prepared to prove that their failure to comply with their own policy did not violate either public policy or Title VII.)

If you have medical verification that you have to be out for longer than 6, but less than 12, weeks, and they do not return you to your own or an equivalent position, you can file a complaint with the Federal Department of Labor, which oversees and regulates FMLA. An equivalent position is one that matches your old job in all respects; pay, benefits, prestige, hours, level of responsibility, etc.

If I missed any of your questions, c'mon back.
 

cbg

I'm a Northern Girl
"They don't have to inform you about FMLA, you ask them for the FMLA forms."

Sorry, Ms. Cupcake, but that's not correct. If the employer has reason to even suspect that FMLA applies, it is THEIR responsibility, not that of the employee, to tell the employee about FMLA and provide the forms, whether they are requested or not. If it turns out that FMLA is not applicable, they can always come back later and say so, but the employer HAS TO make the employee aware of his/her potential rights under FMLA whether the employee asks about it or not.

Either this personnel manager does not understand the law, or they are trying to pull a fast one. I can't tell which. The OP is mistaken about one or two things, but there is no question that the employer is perilously close to, if not already crossing the line into, violating the law.
 

rmet4nzkx

Senior Member
cbg said:
"They don't have to inform you about FMLA, you ask them for the FMLA forms."

Sorry, Ms. Cupcake, but that's not correct. If the employer has reason to even suspect that FMLA applies, it is THEIR responsibility, not that of the employee, to tell the employee about FMLA and provide the forms, whether they are requested or not. If it turns out that FMLA is not applicable, they can always come back later and say so, but the employer HAS TO make the employee aware of his/her potential rights under FMLA whether the employee asks about it or not.

Either this personnel manager does not understand the law, or they are trying to pull a fast one. I can't tell which. The OP is mistaken about one or two things, but there is no question that the employer is perilously close to, if not already crossing the line into, violating the law.
I was only speaking in terms of taking the bull by the horns rather than waiting for them to provide the forms or not out of their ignorance, they were providing other forrms, that's why I told her to print out the qualifications for FMLA from the DOL site etc. Same for vacation by taking the vacation first depending on how much paid sick leave or STD she has she might have a cushion so she might have more time for later, and if they can't figure out that she is qualified for FMLA who knows they might let her take her vacation or take her vacation come bck to work and go back out, or the other way around. I wouldn't want to go out until it was all figured out.

Hey I did the best I could, you were busy today. Remember the guy with the baby in NICU who wasn't put on the healthcare plan, he wasn't told about FMLA he was qualified, so he ended up resigning to take care of the child and no insurance to put the baby on, so all employers do not follow FMLA, even big ones who know better they make an art out of avoiding it.
 

cbg

I'm a Northern Girl
I know you did the best you could. I'm not yelling at you. I was a teacher in another life. ;)

I remember the other post, but I think you jumped to a couple of conclusions. I just went back and re-read that post; nowhere in it does the poster give us the size of the company or the length of time her husband worked for them - in other words, we have no idea if FMLA applied or not.

You are right that not all employers follow FMLA correctly, and I agree that the employer in this post is wrong. Nor are you wrong to suggest she be pro-active. I just didn't want this poster left with the impression that it is her responsibility and that the employer is in the clear when the employer is so obviously out to lunch on this issue.

As far as taking vacation first, if you're suggesting that she take her vacation and THEN apply for FMLA, well, maybe. But if this comes to a DOL complaint, which it very well might,then that could work against her if the DOL chooses to see it as an attempt on HER part to circumvent that part of the law that gives the employER the right to apply vacation and sick time to FMLA leave.

If that's not what you mean, then just be aware for the future that the law does not give the employee the right to refuse to apply paid leave to FMLA, or to extend her FMLA by running paid leave consecutively. I think that one or two states may, but the Federal law doesn't.

I know how hard you work to provide people with answers. If I correct some of what you say, it's not to put you down or put you on the defensive. It's just to make sure that everyone involved clearly understands what rights they do and don't have. You're much better than I am at finding links to the various statutes, and I have experience working with and applying these laws to workplace situations. Working together, we could rule the world :cool: .

If you think I'm wrong about something, I'll listen. If I correct you about something, can you trust that I'll mean it as a heads-up and not a put-down?
 

rmet4nzkx

Senior Member
CBG,
In this post she had stated that the handbook said the employee had to take all possible benefits concurrently, including vacation, seeing as they were not in compliance with at least FMLA, ways to work within their policy and still access her FMLA benefit, heaven forbid if she ever has to utilize ADA accmmodations! That's also why I told her to print out from the DOL site the FMLA qualificaitons and her company handbook, so it wasn't on my authority but DOL. I also know from experience that there are often little provisions hidden in those handbooks, that affect how the days are counted so what might seem to be 12 weeks is less or start on a Friday, last day worked for an anticipated Monday 1st date of disability, etc. just giving a "jeads up" That's also why I suggested that everyone was in agreement before she went out.

As to the other case, that poster PM'd with the information and her husband WAS FMLA qualified, and HR told him that they were not required to inform him of his rights I would have to go back to see what you said. So that man was qualified for FMLA, which would have meant that he would not have resigned to care for his child and not lost the opportunity to add the child to the policy within the 31 days allowed which fell after the last day of their coverage. I also told them in a PM ro still push the FMLA issue.
 
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Lara86

Guest
Some more info

Here's some more info that might help.

I am required to use the five days of vacation I have left first, and that does not extend my leave time. It is included in the "six" weeks. Also, since I have STD payroll deducted, I can use that so I'll at least get some of my salary while I'm gone. However, I only plan on being out 6 to 8 weeks. When my doctor releases me, I'll come back. He said since they say I could lose my job if I'm out longer than six weeks, he could give me a partial work release for a couple of weeks. I really don't want to do that if I don't have to.

I don't know what to do. My husband wants me to take the employee handbook to the personnel manager and show them I am entitled to FMLA leave -- which guarantees a job when I come back as long as it's not over 12 weeks. But since I'm not legally required to even bring up FMLA and the employer is, which they have yet to do, I'm having trouble deciding. My husband agrees with Ms. Cupcake in that I should have everything settled before I leave. I would just like to handle it in a way that would require them to follow FMLA law for my co-workers as well -- not just me. I don't want this to happen to anyone else.

I brought my handbook with me today. It lists FMLA rights & requirements to the letter. But like I said, they are trying to pull a fast one & act like FMLA doesn't exist … hoping I won't know the difference.
 

cbg

I'm a Northern Girl
Lara, you do not have the right to extend your leave with vacation. It is legal for them to require you to take it concurrently. Few if any employers would NOT so require.

But you definitely have the right to the full 12 weeks and I would also advise you to have this straightened out before you go out on leave. While it is the responsibility of the employer to tell you about FMLA if you don't know, you clearly do know that you have that right and Ms. Cupcake's suggestion that you be pro-active is right on the money. I wasn't saying that you SHOULDN'T approach them. My concern, reading her post, was that you (and anyone else reading this thread with similar issues) would think that the employer was in the clear when they definitely are not. By all means ask them about FMLA; take the handbook, a print out of this thread, printouts from the DOL web site, anything you can find to back you up. Heck, take the phone number of the DOL if you have to.

Ms. Cupcake, I understand your perspective. I guess I tend to advise people to do everything strictly by the letter of the law; that way when they file their complaint against the employer, they can say, "Hey, look, I did everything I was supposed to do. I followed the law right by the book". It strengthens their case and deepens the pit the employer may be in.

Regarding the other post, if the husband was definitely FMLA-eligible AND only quit his job because BECAUSE he could not take any leave, that changes things. But that information, which you say you got in a PM, was not available to me. The way the post reads, you can't tell if FMLA applies or not AND it sounds as if they made a conscious choice for him to be a stay-at-home dad.
 

rmet4nzkx

Senior Member
CBG,
Well we only had what she had conveyed and not the exact text of the handbook, I was only suggesting that she look at all the options depending on what they were and go by the book not knowing what it said. It is also important to have the most recent revision, which may have significant differences. Hopefully she will be recovered in time to have some left over FMLA if needed, if that is the case she should also check to see if there are any limitations on how many STD's can be taken, within what perios or if she uses 5 weeks, does she have 1 week left for later until what time or if she were to relapse, the rules around that and or multiple different STD's? It all opens up a box of worms.

Prior to FMLA people routinely used vacation time for surgery and got stuck with comming back too soon etc. And of course, men could have prostate surgery and be out for months while a woman lost seniority for maternity leave, things have changed.

Yes in the other case there were 3 pm's definate violation of FMLA but she would post differently on the forum leaving out that part I guess thinking that she had already covered it. I told them to check with an attorney.
 

cbg

I'm a Northern Girl
"Well we only had what she had conveyed and not the exact text of the handbook,"

True, and good catch.

But regardless of what the handbook says, she is entitled to up to the full 12 weeks provided in the FMLA statute, since company policy cannot supercede the law. Do you agree?
 

rmet4nzkx

Senior Member
Of course I agree she has 12 weeks FMLA. I never said different, it is her company that keeps associating their 6 weeks paid STD for employees with less than 1 year with 6 weeks FMLA instead to 6 weeks paid STD/FMLA + 6weeks/unpaidFMLA for a total of 12 weeks FMLA, they must have a math disibility! :eek:
 

cbg

I'm a Northern Girl
I'm sorry, I didn't mean that last post the way it evidently sounded. I know you never said differently. I was trying to get to the bottom line. My apologies.

I agree 100% about the math disability!
 

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