Ask The Lawyer

By Debra Roth

Q & A Session – FMLA in Regards to Childbirth

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I will be having my first child and becoming a father soon. Can I use FMLA intermittently? It looks like from the Department of Labor information I found, you may but it is subject to the employer’s approval.

I requested to use one week of leave when the baby is born and eight additional weeks a couple of months later. I also requested an additional week months following that for my child’s first birthday. I was told they may not allow it because I must use all of the leave at once unless I have doctor appointments or a medical condition. Is this true?

A:

Under 29 CFR § 825.202 ©, FMLA does not generally require an employer to authorize intermittent leave in relation to child birth. However, an employer may agree to do so voluntarily.

Also, if your child has a medical condition which requires additional care, you may be able to use leave in relation to that condition. Events like a first birthday are not covered under FMLA, but you could take annual leave for that event. 

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – FMLA Violation?

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a current federal employee. I have allergic asthma and was granted FMLA three weeks ago. I became ill recently and needed outpatient hospital treatment. I was scheduled for vacation the following week. Due to the severity of my asthma, my pulmonologist wrote me off work for two weeks. During these two weeks, my supervisor called to check on me and asked if I was at home. I feel like my supervisor wanted me to disclose whether or not I was on vacation. Is this not a violation of FMLA? All medical documentation was received as well as the documentation from the doctor stating I was not to return to work for two weeks.

A:

It is not a violation of FMLA for your supervisor to call you once to check on you, even if you suspect it was in reality to verify that you were not using FMLA as vacation time.

 Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Earning Annual Leave

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I have a serious medical condition, and, because of this, I have had to use all available sick leave, advanced sick leave (currently being paid back each pay period), and my annual leave as I earn it. During the last pay period, I took 8 hours annual along with FMLA leave as I have been doing for several months; however, I received notice that I did not have annual leave to cover the 8 hours and it was converted to leave without pay. Can they do that if I earn 8 hours per pay period?

A:

If you did not have annual leave, your agency has the discretion to advance it but it does not have to. If you receive 8 hours of annual leave per pay period, you will have leave accrued for future medical absences.

 

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Refused Sick Leave to Care for Sister

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I was recently refused sick leave under FMLA to care for my sister who is suffering from breast cancer and severe depression. I have also appealed the refusal to my manager’s supervisor. Can they do this?

A:

“Sister” is not a covered relationship under the Family and Medical Leave Act (FMLA). To be covered, the relationship must be a spouse, parent or child. FMLA generally must be requested in advance or if impracticable, within 2 days of returning to work.

 

Bill Bransford is managing partner of Shaw Bransford & Roth PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Using FMLA Leave

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I am a leave manager and would like some additional guidance on when to notify employees of their FMLA rights and when they should invoke their rights. What if a pregnant woman has accrued two months of leave but hopes to take three months off to care for her newborn, when should I encourage her to invoke her FMLA rights?

A:

The Office of Personnel Management’s rules governing FMLA guidelines are found at 5 CFR §630.1201 et. seq. Those rules explain that it is up to the employee to decide whether or not to take FMLA leave. 5 CFR §630.1205 in particular emphasizes that an employee is free to decide what type of earned leave he or she will request

However, according to 5 CFR §630.1203(a)(1), an employee in the situation you describe may take up to twelve weeks of earned FMLA leave for childbirth and newborn care, assuming she has not already used a portion of her FMLA leave. Such leave must be taken within twelve months of the birth, per 5 CFR §630.1203(d). An employee taking leave for childbirth should provide at least thirty days prior notice. 5 CFR §630.1206(a). She may request to use other types of leave to supplement her FMLA leave. 5 CFR §630.1205.

 

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – FEHB Coverage and FMLA When Furloughed

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

If the government shuts down, would furloughed employees retain their Federal Employee Health Benefits coverage? If a federal employee were on FMLA leave during a furlough, would the time on the furlough be deducted from the leave time? Can a federal employee use accrued paid leave during a furlough?

A:

In the event of a government shutdown, the Office of Personnel Management has assured employees that even if they are furloughed, they would remain covered by the FEHB program. OPM also explains that no FMLA leave will be deducted for time spent on furlough; instead all leave taken during a furlough will be credited as furlough time. Federal law generally prohibits an employee from taking any paid leave during a furlough because it creates a debt not authorized by the Antideficiency Act (31 USC 1341 et seq.), and employees would not accrue additional leave time while on furlough.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – FMLA Eligibility

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

Does a federal employee have to work for the same agency for 12 months in order to be eligible for FMLA? Could previous military service be considered for the 12-month requirement?

A:

Yes, federal employees must have 12 months as an employee. Prior military service does not count.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

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Q & A Session – FMLA Notice Requirements

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

A private sector company has a “no-fault” policy regarding unplanned leave.  The company’s policies require an employee must call in at least one hour before the start of their shift.  An employee will receive an attendance “demerit” for the unplanned absence if they call in at least one hour before the start of their shift, but will receive both an attendance demerit and a write-up if they do not call at least one hour before.  If an employee does not comply with this policy and later informs the employer that the unplanned leave was FMLA, may the FMLA be disallowed and would he get an attendance demerit and/or write up?  May the federal and private sectors treat unplanned FMLA leave similarly?

A:

In the private sector, when the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable, and it is expected that absent unusual circumstances, an employee will be able to comply with the employer’s usual and customary notice requirements for requesting such leave, absent unusual circumstances.  29 CFR § 825.303. For example, an employer may require employees to call in at least one hour before the start of their shift in order to invoke FMLA leave in all but unusual circumstances.  An exception may where an employee requires emergency medical treatment and is unable to call in prior to the start of his or her shift. In that case, he or she would not be required to follow the call-in procedure until his or her condition is stabilized and he or she has access to, and is able to use, a phone. If no such unusual circumstances exist and an employee does not comply with the employer’s usual notice and procedural requirements, then the employer may delay or deny that employee FMLA-protected leave. 29 CFR § 825.303(c).

The extent to which a private employer may delay FMLA coverage for leave depends on the particular facts. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer’s policy, but instead the employee provided notice two days after the leave began, then the employer may delay FMLA coverage of the leave by two days.

An employer may waive employees’ FMLA notice obligations or the employer’s own internal rules on leave notice requirements. If an employer does not waive the notice requirements, the employer may take appropriate action under its internal rules and procedures for an employee’s failure to follow its usual and customary notification rules, absent unusual circumstances, as long as the actions are taken in a manner that does not discriminate against employees taking FMLA leave and the employee is aware of the FMLA notice requirements.

In the scenario above, if the employee calls in to take unscheduled FMLA leave less than one hour before the start of their shift and that employee cannot point to any unusual circumstances for why they did not comply with the employer’s notice requirements, the that employee could be written up for failing to follow the notice policy.  The employee, however, could not receive an attendance demerit for the FMLA-protected leave.

The FMLA regulations applicable to federal employers do not have similar penalties for failing to comply with an employer’s notice requirements for its employees relating to unforeseeable leave.  For federal employees, when the need for FMLA leave is not foreseeable, the employee shall provide notice within a reasonable period of time appropriate to the particular facts and circumstances surrounding the employee’s need for FMLA leave.  5 CFR § 630.1206.  If necessary, notice may be given by an employee’s representatives.  In any case, where the need for leave is not foreseeable and the employee is unable to provide notice of his or her leave because of circumstances beyond his or her control, the leave may not be denied or delayed.

 

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

 

 

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Q & A Session – Denying FMLA without Medical Documentation

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

If an employee requests FMLA and has enough paid time off, but will not tell his or her supervisor the medical reason, can the supervisor deny FMLA?

A:

Yes. OPM regulations permit agencies to request medical evidence to support an FMLA absence that is based on the employee’s serious health condition. Please read my previous Ask the Lawyer column regarding FMLA at http://blogs.federaltimes.com/federal-law/2010/07/25/must-i-grant-this-fmla-request/ for more information.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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Q & A Session – Retroactive FMLA

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Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.

Q:

I have an employee who was out on sick leave, but never requested FMLA protection. Can an employee ask for retroactive FMLA?

A:

A qualified employee may use up to twelve (12) workweeks of leave during any 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her position.  5 CFR § 630.1203(4).  In order for an absence to qualify as FMLA leave, the employee must invoke his or her right to FMLA leave and must comply with the FMLA notice and medical documentation requirements.  5 CFR § 630.1203(4)(b).  An employee may not retroactively invoke his or her entitlement to FMLA leave unless that employee and his or her personal representative were physically or mentally incapable of doing so during the entire period in which that employee was absent from work for FMLA-qualifying purposes.  5 CFR § 630.1203(4)(b).  In that case, an employee may retroactively invoke his or her right to FMLA leave within 48 hours after returning to work.  5 CFR § 630.1203(4)(b).  The incapacity of the employee must be documented and he or she must also explain why their personal representative was unable to contact the Agency and invoke the employee’s right to FMLA leave.  5 CFR § 630.1203(4)(b).

If an employer asks an employee if they would like to invoke their right to FMLA leave and the employee declines to do so, the employer may not place the employee on FMLA leave.  5 CFR § 630.1203(4)(h).  Should the employee return to work after declining to invoke his right to FMLA leave and provide insufficient medical documentation to support the absence, then the Agency should follow its sick leave policies, requesting more documentation and/or declining the sick leave request were appropriate.  Where the employee has declined to invoke FMLA leave, any subsequent attempt to retroactively invoke his or her right to FMLA leave for the absence after he returns to work must meet both the FMLA timing and incapacity requirements.

Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

Disclaimer: Ask a Lawyer publishes information on this website for informational purposes only. Information on this website is intended – but not promised, guaranteed, or warranted – to reflect correct, complete and current developments. In addition, the contents of the website do not constitute legal advice and do not necessarily reflect the opinions of the attorney. Information from this website is not intended to be used as a substitute for specific legal advice, nor should you consider it as such. You should not act, or refrain from acting, based on information on this website without seeking specific legal advice about your particular circumstances. No attorney-client relationship between you and Ask a Lawyer’s author is created by the transmission of information to or from this site.

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