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Being forced to come back early from FMLA maternity leave - Virginia

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  • Being forced to come back early from FMLA maternity leave - Virginia

    My wife is being forced to come back early from maternity leave. Her employer has several hundred employees, my wife is full time with over 2 years, so FMLA does apply. She had FMLA setup for 2/10 through 5/4, fully approved, no issues. Then her supervisor told her on 2/3 that she could also take off 2/6 to 2/9 as well as she had plenty of sick/surgery leave time accrued. Before my wife could answer, she went into labor and our baby was born on 2/5 via c-section. My wife sent her supervisor a message on 2/5 saying she would be taking the additional time off from 2/6 to 2/9 that was offered before starting FMLA as planned.

    Now her employer's HR is saying she cannot 5 weeks after the fact, and is requiring her to come back from FMLA a week early. Everything had been agreed to, airline tickets have been purchased (her family is from overseas), christening dates set and paid for, my leave is set for the last couple weeks she is on FMLA, daycare is set to start on 5/7, etc... For her to come back to work a week early will cost us a considerable amount financially. Plus, she had been allowed to take time off for the 5 days prior to her FMLA starting, so her FMLA would end 5/4.

    Can they force her to come back to work after only 11 weeks of FMLA and the 1 week of time off? They are saying if she does not, they will not guarrantee her job back.
    Last edited by rking1968; 03-08-2012, 07:25 AM.

  • #2
    FMLA is about job protection for 12 weeks regardless of how she was paid or unpaid. It can run concurrently with paid time off. So the employer can start her FMLA from the first day she was off (2/5). The employer does not have to allow her more than 12 total weeks, even if some of that was paid timeoff under sick time policy.

    Your wife got 12 weeks (or will by the date they are requesting her back) job protection.

    Unfortunately her supervisor gave her incorrect information about when FMLA would start and probably misunderstood how FMLA would be calculated. Even if he/she hadn't said she could have those extra days off, her delivery date would have been the start of FMLA and it would count 12 weeks from that. The employer must start FMLA at the correct time. It is not up to the employee to choose that time, so your wife's message to her supervisor taking that as non-FMLA time doesn't matter in the big scale of FMLA.

    Since she is in the middle fo FMLA right now, one suggestion I would have is to ask the employer if she could go in to make up some time within the 12 weeks to earn back that last week of FMLA protection so that you don't have to change plans. Or could she do a bit of work from home each week? I know there would still be childcare issues, but it's an option to explore.

    Unfortunately births can't always be planned to the day. After having three myself, I learned never to count on exact dates.


    • #3
      Granting extra time on the front end is legal but as soon as she had the baby early, that plan changed. Her FMLA started with the first day she was medically unable to work and runs for 12 weeks. FMLA may not just start on any arbitrary date. She can ask if she can take that extra week but her employer is under no obligation to grant it.

      The law doesn't care who is flying from where or when you arranged the christening. This is also not the employer's problem either. They have no control over such things and can not help that you waited until the last week she was hoping to be off to make all these arrangements. She can always ask for a compromise. Perhaps her employer would agree to letting her take just the one day for the christening after she returns.
      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
        Being forced to come back early from FMLA maternity leave

        No, it's not coming back early - she's been told her FMLA ends on time, 12 weeks after giving birth.

        She can request an extra week of unpaid time after her FMLA ends to cover this family visit/christening event, but they do not have to grant it, and if she does not show up at work when the FMLA has ended, they are well within their rights to do any or all of the following:

        terminate her
        give her to a lesser position in a different department
        end her insurance coverage and offer COBRA
        terminate all other benefits
        request reimbursement for the employer-paid portion of medical coverage during FMLA

        They could be nice, and say, "Okay, you have can have one extra week" - but under the strict letter of federal law, they don't have to.

        You mentioned you will be on leave near the end of the FMLA period - perhaps she can go back to work while you & the visiting family care for the baby. Christening - will she need time off from work for that? She can request it now, so they can be prepared for that during her first week back. My company forces the use of all available paid leave at the start of FMLA, so I wouldn't have any time available the first week back, but clearly it's a special occasion and my boss would probably approve unpaid time off for that.

        When the baby arrived early, I realize it was a confusing time for everyone, but honestly that started the FMLA clock. The employer can't delay that start at all, even with the presence of paid time available to use for that first week and approval to use it. FMLA can and should run concurrently with any available paid leave, on the first date the leave was needed. That would be the date your child was born, in your wife's case.

        You and your wife have plenty of time between now and the first week of May to work something out. At least it's not next Monday. Good luck to you both, and congrats on your new baby.


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