• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

FMLA (Family Medical Leave Act)

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

J

jack259_99

Guest
Massachusetts:

I need to know if an employer has the legal authority to place an injured employee on the Family Medical Leave Act, instead of short term disability, which is provided. My employer states that they decide, and do deny STD after 90 days, and place the employee on the FMLA, without the employee's request or approval.

Who has the final decision, the employer or employee ????
 
Last edited:


cbg

I'm a Northern Girl
The employer has the absolute right to place the employee on FMLA regardless of whether the employee wants it or not. However, it's not an either-or. It's entirely possible to be on FMLA and STD both.
 
J

jack259_99

Guest
We currently have a 6 month STD plan, but after 3 months they have been placing people on the FMLA. We have LTD, which I am enrolled in, but they place the fear of God into us about job security. STD is 100% pay for me, not all, depending on length of service. But the FMLA is 0 pay. I always thought that the FMLA was the employees option, as a last resort, non-paid, in the event of a medical emergency leave to tend to a sick family member (mother, father, child, etc...)
 

Beth3

Senior Member
FMLA entitles employees to up to 12 weeks of leave time for a variety of reasons (the ee's own serious health problem, if the ee needs to care for a family member with a serious health problem, for the birth or adoption of a child, etc.) The law does not mandate that FMLA leave time be paid.

If the empoyee is on leave for their own health problem AND if the employer offers a disabilty income plan, it's quite likely the employee will be eligible to apply for STD or LTD benefits. Whether the leave time is also attributable to FMLA has nothing to do with it.

Like cbg said, it's not an either/or choice. FMLA and STD/LTD operate INDEPENDENTLY of one another. STD/LTD benefits were around for decades before the FMLA was enacted.

I don't understand what your employer is doing.

Is your STD plan a salary continuation plan? As opposed to a benefit you make a claim for through an insurance carrier? That might explain things a bit.
 
J

jack259_99

Guest
I have never been on or applied for STD/LTD or the FMLA. I, as are almost all of my co-workers, unfamilar with the FMLA. We are in the process of "hashing" it out with them. It has become a serious and hot issue lately because two co-workers have required surgery, 1 being job related. In both cases both employee's received letters from my employer that they were being placed on the FMLA, after 3 months, although we have a 6 month STD plan, LTD begins after the STD expires. Both employee's were also advised that their job position would be in jeapordy should that not return to work in a resonable time.

I believe our STD/LTD plans are through an outside company.

We have an IA benefit, that involves all on-the-job related incidents at 100% pay, which 1 of the 2 should have been covered under, there is no mandatory cease date on the IA plan.
 

Beth3

Senior Member
Let's put the work-injured employee to the side. His lost time would be covered by worker's comp. His leave time can be attributed to FMLA as well though.

First off, under the law your employer MUST advise employees in writing about their FMLA rights. That is typically done via an Employee Handbook but can be done in any manner in writing. I think it's also a requirement that the employer post a federally required FMLA poster in a conspicuous place. (cbg - correct? It's been a while since I had to concern myself about postings.)

So if your employer has not complied with either or both of those provisions, they're in violation of the federal FMLA.

If an employee is taking leave for a reason that qualfies under the FMLA, it is entirely appropriate for the employer to decide it's FMLA and then notify that employee that their leave time is being attributed to the FMLA entitlement. So in that regard, your employer is doing nothing wrong. Also, the FMLA only requires the employer hold the ee's job open for the 12 weeks of FMLA they're entitled to. Anything longer than that is up to the employer.

I urge you to get a copy of your STD and LTD insurance booklets and/or plan documents right away if you can't locate them in your desk or at home and see what the particulars are for waiting periods and applying for benefits. How your disability benefits are being administered appears to be what's goofy here.

If you find you are being denied benefits that you are entitled to under the Plan, then the gov't agency to contact is the federal Department of Labor.
 
J

jack259_99

Guest
I guess the bottom line is that my employer can and does have the right, by law, to force me or anyone to take the FMLA. The vast majority of us assumed that we had the ultimate decision in when we take unpaid leave during an emergency situation, other than for our own health issues covered under IA (industrial accident), STD/LTD.

As for it being posted, absolutely not. This is all new to us since it has never been an issue in the past. Now it has become a major controversy and issue...
 

Beth3

Senior Member
If you are taking leave for a reason that qualfies under the FMLA, YES, your employer can attribute that leave time to your 12 week annual entitlement under the FMLA. If you want to call that "force," then I guess you can.

If your employer wishes to attribute qualifying leave time to the FMLA, you have no legal basis to object. In fact, the employer is obligated under the law to determine if leave time qualifies as FMLA. They don't HAVE to attribute the time to the FMLA but they HAVE to offer you at least as much leave time as the FMLA dictates for the reasons provided for in the law.

What still is goofier than heck is this notion that your employer apparently has that if you're on FMLA due to an illness, then you don't qualify for STD benefits. That's just not true. The fact that the FMLA doesn't require an employer to continue salary during the leave time does NOT mean that the ee is not entitled to whatever benefits the employer offers.

I have a gut feeling that whoever is supposedly responsible for employment law compliance and benefit administration at your employer's does not know what they're doing.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top