HR Question about FMLA, sick "leave" & Options

[MrsCoolCat]

Hi. So I am accepting how this situation sucks but it is what it is. I do not qualify for FMLA. Will have only worked 8 months by the time I give birth. The only option I've been given is two weeks vacation, separation from employment & IF I get rehired within 30 days all my benefits & time off can be reinstated. I saved up 5.5 wks off (Admin, vacation & sick) bc I was under a different impression. So at this rate does anyone know if I can just ask my Doctor for a bed rest note & take 1-2 weeks off now & still go back to work a day, week, whatever, give birth & then start the other 2 wks?

A part of me accepts that I've lost those days off, but the other part of me is like I did not force myself into work before to save those days for this. I should at least be allowed to take it easy if it's legal & I can. I'm 36 weeks & 3 days pregnant today. I can definitely use some paid bed rest, rest, time off, whatever.

Also, out of curiosity, if I could survive the two weeks bullshit, would I be able to use my FMLA in 4 months when I qualify? I realize this is highly unlikely, but I'm curious to know. Thanks!

[Gin1984]

Check with your state laws, mine require that vacation be paid out, if you were laid off, quit or were fired. 

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[sonjak]

You might look into getting documentation that supports that you presently have a disability per ADA guidelines.  My guess is that with doctor documentation, you can support that this current condition qualifies

(Definition: It is important to remember that in the context of the ADA, “disability” is a legal term rather than a medical one. Because it has a legal definition, the ADA’s definition of disability is different from how disability is defined under some other laws.

The ADA defines a person with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity. This includes people who have a record of such an impairment, even if they do not currently have a disability. It also includes individuals who do not have a disability but are regarded as having a disability. The ADA also makes it unlawful to discriminate against a person based on that person’s association with a person with a disability.)

I don't know how big your employer is but if they have more than 15 employees, they are covered:

(Title I requires employers with 15 or more employees to provide qualified individuals with disabilities an equal opportunity to benefit from the full range of employment-related opportunities available to others. For example, it prohibits discrimination in recruitment, hiring, promotions, training, pay, social activities, and other privileges of employment. It restricts questions that can be asked about an applicant's disability before a job offer is made, and it requires that employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship. Religious entities with 15 or more employees are covered under title I.

Title I complaints must be filed with the U. S. Equal Employment Opportunity Commission (EEOC) within 180 days of the date of discrimination, or 300 days if the charge is filed with a designated State or local fair employment practice agency. Individuals may file a lawsuit in Federal court only after they receive a "right-to-sue" letter from the EEOC.

Charges of employment discrimination on the basis of disability may be filed at any U.S. Equal Employment Opportunity Commission field office. Field offices are located in 50 cities throughout the U.S. and are listed in most telephone directories under "U.S. Government."

Here's a link for the site:
https://www.ada.gov/cguide.htm#anchor62335

You would then tell your employer that you are requesting a "reasonable accommodation" for your current disability and that would like look XYZ.  Legally they are required to enter into the "interactive process" and discuss what you want vs. what they can do to come up with a reasonable solution. 

IMO, it would be difficult for them to justify not allowing you to take those few weeks since they allow others to do so in similar situations (i.e. what makes your case a major hardship for them vs. someone who is covered by FMLA).  You can IM me if you want to discuss more but this is my initial thought.

[MrsCoolCat]

Thanks. My company has over 3k employees. They're just kind of backwards with going by the book for fear of setting any precedence for my situation, etc. so they just gave me the two weeks & separation thing. Which well, I have more than two weeks time off accrued but HR was hinting that only two weeks vacation is allowed unless approved or u have seniority, gray area kinda thing...

[SimpleCycle]

How much do you like your job and want it back?

I think there is still room for negotiation.  I would ask to use up your full amount of sick time plus the two weeks vacation.  Having a baby is a medical event and most doctors write people out of work for 6-8 weeks.  What do they do in the case of short term disability of new employees who are not yet FMLA eligible?  That is the precedent they are setting here.

And yes, they likely have to pay out your vacation if you separate from employment, so I don't see what they are really gaining here.  I would take whatever paid leave they will give you, separate and take your back vacation pay, and look for a new job when you are ready to return to work.  Your employer is being awful and doesn't deserve you back.  It will burn a bridge, but so be it.

[SimpleCycle]

Pregnancy alone is not a disability under the ADA.  I think the ADA approach is very unlikely to work without further documented medical complications.

[sonjak]

Pregnancy alone is not a disability under the ADA.  I think the ADA approach is very unlikely to work without further documented medical complications.

Agreed but she mentioned bed rest, additional medical documentation, etc. which could qualify. 

[MrsCoolCat]

Thanks everyone. Skimming through. Yea, I think they pay 30% of vacation so I'd be calling in pregnancy related symptoms and use sick time. They just offer a lot of time off here. Well, I have two supervisors but one answers to the other. The more powerful one is an elderly man with no siblings or biological children, so even though he has the last say I don't think he cares or can relate. My less powerful supervisor totally understands & even told me worse comes to worse to use my time from now until then & she'd do her best to approve me. I don't want to completely throw her under the bus by being sick back-to-back, so for her I think I'd take home my laptop for a BIT...

[MommyCake]

How much do you like your job and want it back?

I think there is still room for negotiation.  I would ask to use up your full amount of sick time plus the two weeks vacation.  Having a baby is a medical event and most doctors write people out of work for 6-8 weeks.  What do they do in the case of short term disability of new employees who are not yet FMLA eligible?  That is the precedent they are setting here.

And yes, they likely have to pay out your vacation if you separate from employment, so I don't see what they are really gaining here.  I would take whatever paid leave they will give you, separate and take your back vacation pay, and look for a new job when you are ready to return to work.  Your employer is being awful and doesn't deserve you back.  It will burn a bridge, but so be it.

Yes, I agree completely, your employer is being awful.  And there is likely room for negotiation, if this employer wants to retain you.

I was in a similar situation last year.  We have no short term disability and I did not want to take FMLA because it is unpaid.  I had managed to save up 7 weeks of time off during the 9 months of pregnancy.  I worked the full term, up until the day I went into labor.  Trust me, you will want the days off AFTER the baby arrives.  I know EVERYTHING is difficult... putting on shoes, driving in to work, getting through the day.... but it really is worth it to save the days for later.  Prior to the baby's arrival, because of all of the unknowns, I was able to negotiate borrowing sick time up to 4 weeks in the event I was not ready to come back after 7 weeks.  While out on leave, I was able to negotiate a transition back to work by working part-time hours for the first two weeks back on the job.  If you like your job, and they want to keep you, I would try to talk to your boss, and negotiate.

[mm1970]

What state?  I realize that CA is very friendly, but at a minimum childbirth guarantees you short term disability (maybe not *pay*, but time off).

What would they do if someone had a back injury, or was in a car accident, and needed to recover for 6 weeks?

[Gin1984]

What state?  I realize that CA is very friendly, but at a minimum childbirth guarantees you short term disability (maybe not *pay*, but time off).

What would they do if someone had a back injury, or was in a car accident, and needed to recover for 6 weeks?

There is a reason why FMLA exists, because in many cases before it, people were just fired.  Pregnancy, back injury, car accident etc, people just lost their jobs.

[MrsCoolCat]

Florida. Thnx everyone. Yea, I know it's a crappy situation so I'm here among my money suave & experienced, seasoned MMMers! ☺ It prob looks like wasted time saved & a new job tbh. Sadly but sure seems like it. I'm healthy, so not sure I can even get bed rest to use my sick time at this point. Unless u count the emotional mental stress I'm going through. Probably not.

[MrsCoolCat]

Like I said they're very backwards or shrewd with their precedence despite being so large. Actually, maybe that is why. Idk HR sounds pretty set with their two weeks vacation. They said rehiring is likely bc of how long it takes to post the position, interview, etc. Yea, it's still BS as far as I'm concerned.

Their only leeway was if I can come back in two weeks then absolutely we can revisit options & if ur manager will let u work from home. Pssh he's the only one who can work from home. What I am supposed to do now? Start kissing his ass instead of taking sick time in hopes he fights/requests for 4 weeks instead of 2?

He still has room to negotiate, but I'm not sure I do. Though ppl have already told me he doesn't understand or work with ppl unless it makes him look good & above all he has control issues. Not sure I even wanna bother wasting my breath.

A coworker tried changing his lunch to 2pm to pick up his daughter from school. He wouldn't even approve that, so I'm thinking it might be useless. Idk. Fyi, the entire company closes for lunch at noon. Of course he does whatever he wants to since he's upper management. Just giving an example of who I'm dealing with here...

[SKL-HOU]

Wow! Do you really want to work for an asshole like that? If they fire you, you should qualify for unemployment i imagine. Also, when you give birth the doctor doesnt typically clear you until 6 weeks after birth (regular) or 8 weeks after (c section).wouldnt it be illegal to fire you during that time or does that also fall under fmla?

[I'm a red panda]

Medical conditions don't get job protection if you don't qualify for fmla.

[MrsCoolCat]

Oh and yes, the doctor's office already said 6 weeks for natural delivery & 8 weeks for C-section. Also, it's not that I love the company or the job but before this BS it offers a lot of time off, above average health insurance that includes my husband and/or family and it's only 6 miles from my house. Most jobs are 15+ miles away. So I wanted this job bc ha, ironically I thought about how tactical it was when/after I have kids. Now I realize how ironic & ridiculous it sounds!

[SKL-HOU]

Medical conditions don't get job protection if you don't qualify for fmla.

That's what i thought but wasn't 100% sure.
I just think it is a dick move on the boss's part to not give you the time the OP saved up. It is not like it is for vacation or something that can be postponed.

[I'm a red panda]

Oh, I agree. Companies can give benefits, including job protection, without being legally required to! This place seems insanely inflexible.

[MerryMcQ]

As an HR leave administrator - to answer your question on if you could use FMLA after your baby is born, when you have your 12 month anniversary - yes, you could then take 12 weeks off. You can use the FMLA 12 weeks of baby bonding time anytime before the baby's 1st birthday. But since you have no current job protection, it sounds like you won't have a job there...

[MrsCoolCat]

As an HR leave administrator - to answer your question on if you could use FMLA after your baby is born, when you have your 12 month anniversary - yes, you could then take 12 weeks off. You can use the FMLA 12 weeks of baby bonding time anytime before the baby's 1st birthday. But since you have no current job protection, it sounds like you won't have a job there...

Thanks. I was just curious. I know it's looking bleek.