FMLA and Vacation Time -- any HR folks out there?

1405 Views 10 Replies 8 Participants Last post by kaydee, Jun 16, 2005

fiddledebi

Discussion Starter · Jun 6, 2005

I have a legal/procedural question for anyone who understands the legality of FMLA and how it applies to individual companies.

I am due 8/1/05 (with #2). I requested two days a week off during the month of July so that I can rest some before this baby arrives, and spend some time with dd alone. I'll be working M, T, and R until the baby arrives. My boss came to me today and said she wanted to know if she could just arrange to have the vacation time I'm owed moved into the next fiscal year (which opens 9/1) so that I didn't have to take time off before the baby is born. She says she's concerned about me taking time off just before I'm going to be gone for 3 months.

I said that I understood, but that the vacation time is mine to take and that I thought she'd prefer me to take it intermittently rather than all at once. I then gave her a choice: let me take it 2 days a week until the baby is born, or I'll take 2 weeks straight off beginning in the middle of July. She said she'd prefer the former.

The thing is, moving my vacation time into the next fiscal year doesn't do me any good, since you have to use your vacation time during FMLA leave. It will just get used up and I'll still come back to work at the same time, just having had no extra time home before the birth. I can't "save" it for after my leave or anything like that.

So, my question is, can my company deny me vacation time on the grounds that I'm about to have a baby and take FMLA? It didn't sound like she was going to do that, but I'm just not sure. If she tries, I'd like to be ready with a legal argument if I have to.

TIA!

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UmmBnB

· #2 · Jun 6, 2005

HR person here -
*FMLA needs to have a doctors statement "Certification of Health Care Provider" to verify that it is a condition that qualifies under the FMLA. So, your time off prior to the birth can only technically be classified as FMLA with a doctors note. Without FMLA, you loose job protection since that is basically what FMLA is - job protection for employees who must be absent do to an accident, illness, birth or adoption.

*Now this part may vary by state. Where I am, in Colorado, the employer has a right to not allow an employee to take vacation as requested if it isn't convenient for the employer. For instance, our retail staff can not take any vacation time between Thanksgiving and Christmas since that is the busiest time for our retail shop. Vacation time is "owned" by the employee in my state but it's still within the rights of the employer to say when it can and can not be taken.

Now, this statement is something that you may want to check with your local EEOC about ""on the grounds that I'm about to have a baby and take FMLA?"" This sounds like it could border on pregnancy discrimination BUT I have a feeling that it's probably not - going back to the fact that, at least in colorado, employers do have the right to say when a person can and can not take vacation.

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fiddledebi

Discussion Starter · #3 · Jun 7, 2005

Thank you for your help!!!

Quote:

Originally Posted by UmmBnB
*FMLA needs to have a doctors statement "Certification of Health Care Provider" to verify that it is a condition that qualifies under the FMLA. So, your time off prior to the birth can only technically be classified as FMLA with a doctors note. Without FMLA, you loose job protection since that is basically what FMLA is - job protection for employees who must be absent do to an accident, illness, birth or adoption.

I know about the form; I'm actually working on getting my midwife to fill it out today. I actually do want to keep my FMLA time and vacation time prior to baby separate, since I want to work basically part time in the weeks prior to the birth.

Quote:

Originally Posted by UmmBnB
Vacation time is "owned" by the employee in my state but it's still within the rights of the employer to say when it can and can not be taken.

I guess that makes sense...but what a bummer. Basically an employer could deny it at any time for any reason? It's so irritating for me -- July is the slowest month of the year where I work, so I thought I was golden!

:

Oh well. I guess if I'm really tired and worn out and feel like I need the time off, I'll just get my midwife to "approve" me to stop working a couple of weeks before my due date, and settle for two fewer weeks home with the baby. What a sad choice to make. And this is supposed to be a "family-friendly" place to work!

Thanks again for your help!,
Debi

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wednesday

· #4 · Jun 7, 2005

Someone at my former workplace took about a month of vacation leave after her son was born, and THEN put in for her 12 weeks of FMLA. I was surprised she was able to do that. She essentially took a full 16 weeks of leave for the birth, and the way the law is written, you can't be forced to retroactively charge leave to FMLA. Since she didn't request the FMLA until she'd already been out a while, she was still entitled to another 12 weeks on top of the time she'd already been off. A lot of people thought what she did was kind of "sneaky" but who can blame a mama for wanting to stay with her babe as long as possible? Anyway, food for thought.

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wednesday

· #5 · Jun 7, 2005

Oh, and FWIW, I agree with the tack that your boss is practicing something like pregnancy discrimination. Would other employees be allowed to take vacation un July? Then you ought to be permitted to as well. Your maternity leave is not just more "vacation," it is a medical leave. Just because you know it's coming doesn't mean you're less entitled to vacation time you've earned. Hopefully there is a way you can work this out happily. Maybe you can compromise and take just one day off a week during July?

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Katt2005

· #6 · Jun 9, 2005

I just wanted to say be careful. I am pg and WAS working too. I starting feeling like poo cause of the job I was on, and left on FMLA, cause I had already applied for it. Well, HR said I misused my FMLA and would not allow me to come back to work the next day until I had a restriction from the Dr. about the particular job I was on. Well, my work does NOT accomidate outside restrictions, and I was forced on medical right then. This was in April and I'm not due til Sept. My FMLA will run out before baby is born, since they said it, by law coincides with my medical.

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JNW

· #7 · Jun 10, 2005

Quote:

Originally Posted by fiddledebi
The thing is, moving my vacation time into the next fiscal year doesn't do me any good, since you have to use your vacation time during FMLA leave.

My employer requires all sick/vacation leave to be used under FMLA before unpaid leave can be used, EXCEPT when the FMLA leave is for maternity leave. Then you have the option of using all your sick/vacation leave, or not. (I didn't.)

This doesn't shed light on your basic question, but perhaps might open up some other options for you.

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Indigomama

· #8 · Jun 12, 2005

Vacation time should not count as FMLA.

The company I work handles it similar to JNW's -

Any unused vacation (if there will be before end of calendar year) is added prior to FMLA beginnging. In the case of my employer... STD covers you for 6 - 8 weeks. The 6 - 8 weeks count as FMLA and then you are paid for you vacation... then you have the remainder of you FMLA left...

but the company also has VERY liberal leave of absence policies... so FMLA is never limiting the amount of time you have...

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Hannah's Mom

· #9 · Jun 13, 2005

Quote:

Originally Posted by Indigomama
Vacation time should not count as FMLA.

The company I work handles it similar to JNW's -

Any unused vacation (if there will be before end of calendar year) is added prior to FMLA beginnging. In the case of my employer... STD covers you for 6 - 8 weeks. The 6 - 8 weeks count as FMLA and then you are paid for you vacation... then you have the remainder of you FMLA left...

but the company also has VERY liberal leave of absence policies... so FMLA is never limiting the amount of time you have...

Actually, my understanding is that an employer can opt to make you use accrued paid leave for some or all of the FMLA time, as long as they tell you in advance that it will count as FMLA.

http://www.dol.gov/elaws/esa/fmla/faq.asp

edited to clarify

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UmmBnB

· #10 · Jun 15, 2005

Just a clarification about FMLA, law vs. practice. The law is pretty basic - 12 weeks of job protection for folks to be out to care for themselves or an immediate relative for birth/adoption or "serious medical condition" (which must be certified by a medical professional.

Employers can require that paid time off be used up while someone is on FMLA, or not. That is totally up to each company.

It is the employer's responsibility to notify an employee that they are on FMLA, not the employee's.

FMLA and vacation time (or any other type of pto) are unrelated. PTO is a way to be paid for time off. FMLA is 12 weeks of unpaid job protection. Most companies combine the two in some way or another - ie. requiring that employees use up pto as a way to be paid while on FMLA...but company policy connects the two, the law has nothing to do with being paid....if that makes sense.

It's a pretty basic law that, when not clearly understood by companies, gets really confusing....but its really not.

maria - hr person on vacation :LOL

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kaydee

· #11 · Jun 16, 2005

To complicate matters, your state's pregnancy disability leave might also have rules & regs that come into play here....

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