Results 1 to 6 of 6

Thread: Can I opt out of FMLA? California

  1. #1
    Junior Member
    Join Date
    Apr 2011
    Posts
    2

    Default Can I opt out of FMLA? California

    I will be taking 9 weeks off intermittently for bonding with my child. My supervisor has approved my proposed schedule, which inludes a combo of paid and unpaid time off. The unpaid time off is only allowed under FMLA. Paid time off will be vacation, etc.
    All paid time will be used up first, starting when labor begins, then unpaid time will kick in.

    Can I opt out of FMLA coverage for the paid portion of my time off? My supervisor is fine with it, but I'm anticipating my HR dept will want me to code all of it as FMLA.

    My wife works for same employer and therefore any FMLA I use is subtracted from her 12-week bonding allotment, so I'd like to opt out.

  2. #2
    Senior Member
    Join Date
    May 2005
    Posts
    5,730

    Default

    Can I opt out of FMLA coverage for the paid portion of my time off? Only if your employer is willing to let you do so. If you're taking time off work for a reason allowed under the FMLA, your employer may assign that time to your FMLA entitlement.

    Option B is just to schedule vacation without telling your employer anything further. If they don't know it's for time with your newborn, then it can't be identified as FMLA time. Sounds like that ship has sailed however.

  3. #3
    Moderator
    Join Date
    Jan 2006
    Location
    MD
    Posts
    14,255

    Default

    Whether you want it to be FMLA or not, your employer can still make you split the 12 weeks. You can not just decide you don't want it to be FMLA to get more time off or everyone would do that. Your employer may very well still grant you the time off you desire, particularly if you do have PTO to cover much of it. You will need to ask.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

  4. #4
    Junior Member
    Join Date
    Apr 2011
    Posts
    2

    Default

    Quote Originally Posted by ElleMD View Post
    Whether you want it to be FMLA or not, your employer can still make you split the 12 weeks. You can not just decide you don't want it to be FMLA to get more time off or everyone would do that. Your employer may very well still grant you the time off you desire, particularly if you do have PTO to cover much of it. You will need to ask.
    Elle,

    Maybe I should clarify. I am not just deciding that I do not want it to be FMLA. I am requesting vacation time off, which coincides with the arrivalof my child. The vacation has been approved by my supervisor. My wife will be taking FMLA time off at the same time, so my question is can our HR Department label my vacation time as FMLA time, even though I am not requesting it? The law specifically states that I am entitled to time off, not that I am required to take it. So I'm looking for someone with a legal background to answer the question.

    Thanks.

  5. #5
    Moderator
    Join Date
    Jan 2006
    Location
    MD
    Posts
    14,255

    Default

    Yes, they can label it as FMLA and in fact should do so to remain in compliance with the law. Employers can not disregard a federal law because the employee says it is ok to do so. It does not matter if the time is paid through vacation, sick, personal, annual or unpaid. If the reason for the leave qualifies as FMLA and the employer knows the reason, they should by law designate it that way.

    They can always be more generous in granting time and allow you more than the 12 weeks or allow your wife to take 12 weeks as well. The law only states the minimum an employer must offer, not the maximum. It is very possible that if your supervisors are on board with your leave plan, you are fine to take that time off, even if the last few weeks aren't technically FMLA as the law defines it. If the employer wants to call it FMLA and grant the same protections, then they are not precluded from doing so, but just realize that they aren't legally obligated to do so either.

    I highly recommend speaking to HR before the baby comes to get this all straightened out so that you aren't surprised or trying to make it work after baby comes. I'm sure you are going to want to spend your time with baby and not dealing with leave approval issues at work.
    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

  6. #6

    Default

    As this is California, you should also look into CFRA (Your HR department should be able to help you with this.) Since you are both residents of CA, you have the right to time above and beyond the 12 weeks of FMLA. I don't know how much time your wife is taking off but this might help with your specific situation:

    http://www.documents.dgs.ca.gov/ohr/...Procedures.pdf

Similar Threads

  1. Replies: 5
    Last Post: 08-13-2010, 08:19 AM
  2. FMLA California California Colorado Connecticut Delaware District of Columbia Florida
    By Napacific in forum Maternity Leave - Pregnancy Laws
    Replies: 11
    Last Post: 08-15-2009, 02:29 AM
  3. WC vs FMLA Retro Start date California California
    By Milosham in forum Disability Leave Laws
    Replies: 15
    Last Post: 05-05-2008, 10:45 AM
  4. Replies: 8
    Last Post: 02-11-2008, 03:57 PM
  5. Replies: 2
    Last Post: 12-18-2006, 11:57 AM

Tags for this Thread

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •