Wrongful termination

[cbg]

Fine. Have it your way. A parent with a history of bad attendance calls in because her kid is sick and that's somehow that's sufficient for the employer to know that FMLA should apply and give her a pass.

 

[justalayman]

Fine. Have it your way. A parent with a history of bad attendance calls in because her kid is sick and that's somehow that's sufficient for the employer to know that FMLA should apply and give her a pass.

I didn’t say it does but if fmla does apply, there is no reason op should not be afforded the benefits of fmla.

As to whether the employer should know if fmla should apply

We know nothing of the dynamics of ops employment. Maybe they would know, maybe they wouldn’t. It really doesn’t matter though, does it? If they didn’t provide the forms and it does apply, then it’s the employers fault and not the ops.

Personally, I suspect that even if it does apply and gives the op a do over it will be short lived. I don’t believe that justifies ignoring the possibility though.


It’s like speeding in your car: no matter how many times I’ve gotten a ticket, being given a ticket when I wasn’t speeding shouldn’t cause people to say: well, you have gotten other valid speeding tickets so you should just accept this one.

 

[Taxing Matters]

As to whether the employer should know if fmla should apply

We know nothing of the dynamics of ops employment. Maybe they would know, maybe they wouldn’t. It really doesn’t matter though, does it? If they didn’t provide the forms and it does apply, then it’s the employers fault and not the ops.

I disagree. If the employer doesn't have any reason to know the employee may need or is seeking FMLA leave the employer is not obligated to nevertheless stuff FMLA forms in the hands of the employee. The employee does have responsibility to initiate the FMLA leave approval. It is not all on the employer, as you you would seem to have it.

What the FMLA regulations require is that the employer inform employees of the FMLA requirements and what the employer's policy is regarding applying for FMLA leave is. From there, when the employee has an unforeseen need to use FMLA leave it is squarely the responsibility of the employee to inform the employer of the need for the leave and to provide enough information such that the employer may determine that the request qualifies for FMLA leave. 29 CFR §825.303(a) & (b). Moreover, "When the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances." 29 CFR § 825.303(c).

 

[justalayman]

The dol doesn’t agree with your interpretation


https://www.dol.gov/whd/fmla/employerguide.pdf

Content of an Employee’s Notice
An employee’s notice of a need for FMLA leave may be oral or written. The first time the employee requests leave for a qualifying reason, he or she is not required to specifically mention the FMLA. However, the employee is required to provide enough information for the employer to know that the leave may be covered by the FMLA. For foreseeable leave, the employee must also indicate when and how much leave is needed.
Once approved for a particular FMLA leave reason, if additional leave is needed for that same reason, the employee may be required to reference that reason or the FMLA. In all cases, the employer may ask additional questions to determine if the leave is FMLA-qualifying.

And along with that:

DID YOU KNOW?
As soon as an employer has enough information that indicates an employee’s need for leave may be for an FMLA-qualifying reason, the employer should begin the FMLA leave process.
An employer’s management team and leave administrators play a vital role in ensuring FMLA compliance. Managers, assistant managers, supervisors and leave administrators must be able to recognize FMLA-qualifying reasons for leave and properly initiate the required notifications
and eligibility checks. Providing FMLA training regularly helps to make sure those responsible for implementing the FMLA are up-to-date on the requirements of the law and the employer’s policy, procedures and practices. Keeping everyone informed, for example by using the FMLA power point found on the Wage and Hour Division’s FMLA webpage, can help an employer stay in compliance with the law.

If the employee said: I’ve got a sick kid, that is notice the leave may be fmla covered. The onus is then upon the employer to provide the proper documents if they believe fmla is applicable.

 

[Taxing Matters]

The dol doesn’t agree with you

The DOL does agree with me. The DOL issued the regulations to which I cited. And if there is any difference between a summary provided by a regulation and the text of the regulation itself, the text of the regulation controls. While I don't disagree with the summary, it does not contradict my point that the employee does have responsibilities under the FMLA, as the regulation clearly provides.

 

[justalayman]

Your statement does contradict tithe publication I linked.


The employee gave notice of the reason for the leave: sick child

It is not up to the employee to determine if the leave is covered. The dol stated the employee is not obligated to bring up fmla upon the first instance.

Once given notice of a situstion that may involve fmla, the dol says the employer has the next move.

 

[PayrollHRGuy]

Come on guys and gals. The OP said, "My last issue I had to call in due to my child being sick." There is close to ZERO chance this is an FMLA issue. There is simply no way the OP wouldn't have mentioned an issue that rose to that level.

 

[justalayman]

Come on guys and gals. The OP said, "My last issue I had to call in due to my child being sick." There is close to ZERO chance this is an FMLA issue. There is simply no way the OP wouldn't have mentioned an issue that rose to that level.

And if she wasn’t aware that it was fmla covered why would she?

That doesn’t mean it wasn’t.

 

[Taxing Matters]

Once given notice of a situstion that may involve fmla, the dol says the employer has the next move.

But what you said was:

We know nothing of the dynamics of ops employment. Maybe they would know, maybe they wouldn’t. It really doesn’t matter though, does it? If they didn’t provide the forms and it does apply, then it’s the employers fault and not the ops.

From even what the summary you quoted says, it does matter what the employer knows. It says: "However, the employee is required to provide enough information for the employer to know that the leave may be covered by the FMLA." So if the employee does not provide that information, the employer has no obligation. If the employee does provide that information, then the employer does know that the FMLA does apply, or at least appears to apply. So the knowledge of the employer does matter, contrary to your assertion. As I said, it is not all on the employer, the employee does have responsibilities here, starting with giving enough info that the FMLA may apply. Sure, the employee in that first instance need not use the magic phrase FMLA to get it, but there is still a requirement to provide enough info that the employer knows FMLA is involved.

 

[justalayman]

For Pete’s sake folks. You have all blown this way out of proportion


I was asksing the op about the issue simply to ensure it was or wasn’t an fmla issue. Rather than allow the op to address it you have all seen the need to attack me simply because I believe being thorough is better than ignorance

Chill out and stop hijackimg the thread because you all want to argue with me


It isn’t about me. It’s about the op


Now I, done discussing it. If the op wishes to entertain me, she can. It’s her call.

 

[PayrollHRGuy]

And if she wasn’t aware that it was fmla covered why would she?

That doesn’t mean it wasn’t.

No, I mean in this forum the OP would have said it was because the child had a bad illness. From what the OP wrote there is no reason to infer that it was anything more serious than a tummy ache. I've personally taken hundreds of calls form EEs calling in to be off for sick kids . They are NEVER shy about going into details on the illness.

 

[justalayman]

But what you said was:



From even what the summary you quoted says, it does matter what the employer knows. It says: "However, the employee is required to provide enough information for the employer to know that the leave may be covered by the FMLA." So if the employee does not provide that information, the employer has no obligation. If the employee does provide that information, then the employer does know that the FMLA does apply, or at least appears to apply. So the knowledge of the employer does matter, contrary to your assertion. As I said, it is not all on the employer, the employee does have responsibilities here, starting with giving enough info that the FMLA may apply. Sure, the employee in that first instance need not use the magic phrase FMLA to get it, but there is still a requirement to provide enough info that the employer knows FMLA is involved.

My kid is sick

That is enough info to allow the employer to believe it may be a covered leave. If the employer requires more or clarifying into, it is up to them to request it. The employee doesn’t have to dump a ton of documents on their desk and say: is this enough?

 

[Taxing Matters]

I was asksing the op about the issue simply to ensure it was or wasn’t an fmla issue. Rather than allow the op to address it you have all seen the need to attack me simply because I believe being thorough is better than ignorance

I am not attacking you. I agree that at least mentioning FMLA to be thorough is a good idea. But I also wanted to address your statement that it wouldn't matter what the employer knew, as that could be potentially misleading to the OP and others. Disagreement on a point of substance is not, to my mind, an attack, even if you don't like that I disagree with you.

 

[justalayman]

No, I mean in this forum the OP would have said it was because the child had a bad illness. From what the OP wrote there is no reason to infer that it was anything more serious than a tummy ache. I've personally taken hundreds of calls form EEs calling in to be off for sick kids . They are NEVER shy about going into details on the illness.

Oh bs. Many people have no idea what fmla is let alone what it covers or when it applies. Let the op respond and stop hogging bandwidth for no purpose.

 

[PayrollHRGuy]

I don't think that is enough. Sick does not put the employer on notice of a serious health condition. Especially not in a case where it is a call in before a shift just saying they won't be at work that day.