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  • FMLA question

    If my doctor keeps me out of work on Short-term disability for 12
    weeks. Is my employer allowed to tell me after 12 weeks that I have used all
    of my FMLA leave even if I never was notified that my leave was considered FML
    nor did the company tell me at the beginning of the leave that the leave was
    considered FML?

    This information is not posted nor is it in the employee handbook. There is not
    employee handbook.

  • #2
    Legally it is a grey area, but the most recent court case on the subject would indicate that a failure to designate the leave as FMLA, does not obligate the employer to offer another 12 weeks. The only way you would have a case is if your reliance on the non-FMLA status, interfered with your right to take FMLA. Even then, it isn't clear what the "penalty" to the employer would be, and whether this would automatically obligate them to offer you more time.
    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.

    Comment


    • #3
      FMLA question

      Thank you for responding. My employer says that my FML leave is up and if I do not return to work ASAP, then I will no longer have a job. My doctor said that I could return but with possible restrictions such as physical therapy treatments.

      Now my job says that I can't return to work because they do not know if they can accommodate my restrictions and as my leave is exhausted under FML, they do not have to allow me to have time off for the PT appointments. Please advise, what I should do. Should I report them to the Department of labor because I was never advised that my leave was FML? Thank you in advance for your help.
      Last edited by akamail; 05-21-2006, 07:50 PM.

      Comment


      • #4
        If your time is up, and your employer can not accommodate your restrictions, then they do not need to allow you to return. If you are out of time, then they do not need to allow you additional time off to go to PT. Is it possible to schedule PT for before or after work hours? Many facilities have early morning and evening appointments.

        You can report them for not designating the leave though I wouldn't count on that resulting in any additional leave for you. The Supreme Court was rather clear on that point. The "penalty" for failing to notify an employee that their time counts as FMLA is not additional leave. The law simply doesn't indicate that as a remedy.
        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.

        Comment


        • #5
          Fmla

          They said that if I did not report to work on May 22, 2006, my FML leave would be exhausted and my job not held open. Now, they are saying not to report because they cannot accommodate my restrictions. Can they terminate me if they told me not to come back tomorrow? I never gave them written notification of any restrictions, but verbally told them that
          I currently attend PT during working hours, but needed to discuss a possible revised schedule with my doctor first.

          Before, I could return from the doctor's office, I had received a message from HR telling me not to report tomorrow b/c they did not know if they could accommodate my current need to attend PT.

          Thanks for your help.
          Last edited by akamail; 05-21-2006, 07:50 PM.

          Comment


          • #6
            I replied to your question in private.

            If they can not accommodate your restrictions, they do not have to allow you to work, whether it is FMLA or not. When were you first informed that your time counted as FMLA? Had you indicated the reason you needed leave prior to going out? Did you submit paperwork to go on leave? Often that paperwork will include a notice about FMLA.

            Also relevant, if you had known from the outset that you only had these 12 weeks, would it have changed anything? In other words, if you stil lwould have needed the full 12 weeks and more no matter what, your employer didn't violate FMLA in spite of the lack of notice. If you could have arranged things differnetly or perhaps not taken time off for another reason that counted toward FMLA, then the lack of notice could be found to have interfered with your rights under the law, and you have more of a case. The courts haven't really dealt in any definitive way with that sort of sceanrio, though the Supreme Court did allow for that to be actionable.
            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.

            Comment


            • #7
              remedies for failing to notify an employee that their time counts as FMLA

              What are the penalties for failing to notify an employee that leave counts as FMLA?

              Comment


              • #8
                Straight from the Ragsdale decision, this section refers to why granting more time is not the appropriate remedy.

                The categorical penalty is incompatible with the FMLA's comprehensive remedial mechanism. To prevail under the cause of action set out in §2617, an employee must prove, as a threshold matter, that the employer violated §2615 by interfering with, restraining, or denying his or her exercise of FMLA rights. Even then, §2617 provides no relief unless the employee has been prejudiced by the violation: The employer is liable only for compensation and benefits lost "by reason of the violation," §2617(a)(1)(A)(i)(I), for other monetary losses sustained "as a direct result of the violation," §2617(a)(1)(A)(i)(II), and for "appropriate" equitable relief, including employment, reinstatement, and promotion, §2617(a)(1)(B).
                http://caselaw.lp.findlaw.com/scrip.../00%2D6029.html
                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.

                Comment

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