Can you help me with an FMLA question?

I had a similar experience.  I filed for short term disability for my lumpectomy. followed by a second surgery a week later to evacuate a hematoma. The representative I spoke to insisted that the FMLA forms were "part of it."  I went ahead and filed for DI, which was approved.  I did not file the FMLA paperwork and have not heard anything more (I work for a very large company, so it might take them a while to catch up with me).  I've gone on the Department of Labor website (DOL.gov) and find the issue of whether we have the right to use vacation time or ordinary sick time unclear; they seem to say that we do and they also seem to indicate that we do not.  I suggest calling the DOL at 1-866-4-USA-DOL  (1-866-487-2365) between 8 AM and 8 PM eastern time; I'm planning to do that myself.

I am now in the process of filing for DI once again and, this time, FMLA as well, as I'm just finishing up rads at a facility two hours from my home--no way I can do anything else.

Hi April,  I used FMLA for when I had to be out on doc appointments. 

"Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer's normal call in procedures.Employees must provide sufficient info for the employee to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave".

Here's the scary part:  "Covered employers must inform employees requesting leave whether they are eligible under FMLA".

I would think that in your case, the company could make a case that you should have/must provide the 30 days notice since your need for FMLA is foreseeable...this may be why the HR person is so concerned.  Go to www.wagehour.dol.gov and you should be able to get info on FMLA.

April -



I'm not in HR or management, but I hear what you are saying and agree. If you have not requested FMLA, your FMLA clock should not start ticking.



You have PTO (sick days) and are using those the way any employee would use them for doctor's visits, procedures, illness, etc.



I can understand where HRight teach out to attempt to protect your future rights - but as you are not facing that extent of treatment right now, it makes sense to me that you do not want that ball rolling prematurely.



My husband has access to FMLA but did not access it at all through my surgery, recovery, Feb - July chemo, and rads. He had a flexible schedule as an exempt employee and plenty of PTO. In fact, it was only recently mentioned to him that he might want to check with HR regarding FMLA in the future.



It appears that the HR person may indeed have jumped the gun.



Hoping you can get this taken care of with minimal extra effort. (Guess that might be an oxymoron.)



Diana

I am not a lawyer (but did used to be a union steward) but you might want to request interpretation from your state labor dept if you have no union representation. The paragraph below isnt entirely clear to me but seems to say you are within your rights to request your paid leave rather than FMLA. Boilerplate language like this can be very useful when asserting your rights. I doubt the HR person has even read this. They aren't perfect we know,



http://www.ctdol.state.ct.us/wgwkstnd/laws-regs/famedreg.pdf



Page 32



See 29 CFR §825.207)

§ 31-51qq-18 Is FMLA leave paid or unpaid?



(c) Substitution of paid accrued vacation, personal or medical/sick leave may be made for any unpaid leave needed to care for a family member, or the employee’s own serious health condition. Substitution of medical/sick leave may be elected to the extent the circumstances meet the employer’s usual requirements for the use of medical/sick-leave. An employer is not required to allow substitution of paid sick or medical leave for unpaid FMLA leave “in any situation” where the employer’s uniform policy would not normally allow such paid leave. An employee, therefore, has a right to substitute paid medical/sick leave to care for a seriously ill family member only if the employer’s leave plan allows paid leave to be used for that purpose. Similarly, an employee does not have the right to substitute paid medical/sick leave for a serious health condition which is not covered by the employer’s leave plan.

I'm a supervisor at my work. As others have said... at our institution, if I as a supervisor become aware that an employee may need FMLA coverage I'm required to institute FMLA regaurdless of the employees wishes. 

Now I have more than 2500 hours of sick leave.  And if HR knew about my cancer they'd force me onto FMLA.  Crazy.  But as long as I don't tell them, and as long as I don't exceed 3 days leave at a time I can use all my leave and need not request FMLA. We make sure information about FMLA is available to the employees, but don't push things unless someone brings it up, or has less than 12 weeks of leave.

So yeah my understanding is, they can make you file for FMLA.

I fully expect a huge lawsuit when they eventually terminate someone with earned leave on the books who has exhausted FMLA, but hopefully it won't happen.

I'm thinking each state may have put their own imprint on the basic FED requirements. Hopefully there is a state function that can help interpret.

Glad to here they are giving you some space...  Yes anything that isn't applied equally is sure trouble for the organization.

Yeah. It's a balancing act.  One more fracking thing that we do not need when we are dealing with everything else that goes with cancer.  And I personally don't believe FMLA is being administered as it was meant to be.  For those of us who have been on the job a long time (25 years) used little leave, and entitled contractually to "carry" that leave forward?   FMLA is a club to beat us with.  I understand that for those who don't have such generous leave policies where we work, it's a god send but...  yeah.  Don't ask, don't tell.  That's my motto.