XP: Cross Post FMLA Loopole

smilormarie · July 2013

Mobile Bumpers: Cross Post FMLA Loophole.

After finding this out at work, I'd like to let everyone know there is a loophole with Federal FMLA Laws. If you have less than 12 months at your qualifying employer more than 50 employees and you take leave for the birth of a child. That leave is not FMLA but just disability time. Upon you reaching the milestone of 12 months at your employer, you then become eligible for FMLA and your employer is required to let you take this additional unpaid leave. This way you get more than the standard 12 weeks. The best case scenario would be to get hired at a new job shortly after learning of your pregnancy. I wish I had known. Over 10 years with my company and I only can take 12 weeks. A new girl who started 10 months ago is getting 5.5 months.

CaliforniaDream87 · July 2013

This does not apply to everyone as every state has different laws. I've been with my company for 3 years, I live in CA, and I will be getting 16 weeks off. This 16 weeks doesn't include PDL which could possibly be another 16 weeks if needed.

staceymack · July 2013

I'm in NC and work at a company with 10,000 employees. There isn't a special disability program for pregnancy. Employees can sign up for short term disability, but you must have it a year before using it. In my situation I've been employed there 5 years. I had to go on br at 22 weeks or so. I had to begin my 12 week fmla when put on bed rest. When that runs out I can apply for an extension, but during the extension my boss can still post my job if she wants.

LJUTCMommy · July 2013

I am in Ca and this does not appply at my company.

Disability for employees is no more than 30 days. After 30 days, the employee may be terminated no matter how short/long their employment at the company.

The only exception to this rule is maternity leave, in which an employee may be out of work for up to 4 months total.

Both types of leave are unpaid and cannot be combined.

Every company and state is different. Perhaps you should add your location to the post so it's more informative.

pantsarella · July 2013

This isn't a "loophole" in FMLA- it's clearly stated in the rules of being eligible for FMLA.

And not all jobs offer disability. I have zero disability coverage. If I wasn't eligible for FMLA, I would be able to use my PTO and then it's my employer's discretion if they allow me to take unpaid time off or fire me.

rissa06 · July 2013

Yes, depends on the state, as pp said. but also u dont accumulate hours while you are out on disability and there is no job protection while you are out prior to FMLA.

magdalina.h · July 2013

That's not a loop hole

smilormarie · July 2013

CaliforniaDream87:
This does not apply to everyone as every state has different laws. I've been with my company for 3 years, I live in CA, and I will be getting 16 weeks off. This 16 weeks doesn't include PDL which could possibly be another 16 weeks if needed.

So the plan is, jump jobs to get the extra unpaid time off or move to CA. CA employees also get to carry over any unused vacation time even though my company as a whole does not allow vacation carry over. Why can't all states have CA laws?

cinderin · July 2013

I am in HR and have administered leave for a number of years (though I don't do it now).

Things you will want to know:

Federal Law (such as FMLA)

State Law (additional leave laws)

Your company policies

My employer allows 6 months of maternity leave (including FMLA if you are eligible for it). It is totally unpaid (you can use sick and vacation). They are more generous than the law requires. The law (Federal and State) is simply the minimum required.

MammaBear81 · July 2013

pantsarella:
This isn't a "loophole" in FMLA- it's clearly stated in the rules of being eligible for FMLA.
And not all jobs offer disability. I have zero disability coverage. If I wasn't eligible for FMLA, I would be able to use my PTO and then it's my employer's discretion if they allow me to take unpaid time off or fire me.

All of this- in NY our "disability" is served concurrently with our 12 weeks FMLA (since FMLA is unpaid), so we get paid for 6 weeks disability, we can use whatever PTO we want, but our job is only held for 12 weeks TOTAL.

ETA: if your company has a different policy, then that's great, but this has nothing to do with FMLA.

Just as a side note, you can still get let go while on FMLA, you just can't be singled out (meaning you can't be let go BECAUSE you are on FMLA). If the company is doing lay offs, you CAN be one of the ones to be let go. Most people assume that their job is 100% guaranteed, that is not the case.

smilormarie · July 2013

Ok, so everyone understands: Disability, FMLA etc are not the same. The usual plan is that the employee is required to go through a waiting period of 2 weeks before disability pay starts. This is usually your sick time or some personal time or vacation or unpaid. Then about 6 weeks disability. FMLA, if you are eligible, is required to run concurrently with disability. You can't tack on your 12 weeks FMLA after those first 8 weeks (sick and disability). But if you do not yet qualify for FMLA due to not being there at least 12 months, you can then take your 12 weeks FMLA after you become eligible (during maternity leave or around the weeks you are due to return to work after the 8 weeks off. So, if you were to get pregnant a month after being hired, you wouldn't qualify for FMLA while out on 8 weeks recovery but would then meet your 12 months after that and then be eligible for your 12 weeks unpaid FMLA, thereby extending your total maternity leave. I now know for my next kid to change jobs immediately after becoming pregnant. It IS an FMLA loophole in that if you have not worked for 12 months, you are still covered under disability due to your OBGYN or midwife note and then later upon meeting the requirement, you, by law, can take the extra time. The rest of us who purposely waited to be at our job long enough to qualify for FMLA, have to eat up both at the same time, giving us a max of 12 weeks. It's crap.

rissa06 · July 2013

smilormarie:
Ok, so everyone understands: Disability, FMLA etc are not the same. The usual plan is that the employee is required to go through a waiting period of 2 weeks before disability pay starts. This is usually your sick time or some personal time or vacation or unpaid. Then about 6 weeks disability. FMLA, if you are eligible, is required to run concurrently with disability. You can't tack on your 12 weeks FMLA after those first 8 weeks (sick and disability). But if you do not yet qualify for FMLA due to not being there at least 12 months, you can then take your 12 weeks FMLA after you become eligible (during maternity leave or around the weeks you are due to return to work after the 8 weeks off. So, if you were to get pregnant a month after being hired, you wouldn't qualify for FMLA while out on 8 weeks recovery but would then meet your 12 months after that and then be eligible for your 12 weeks unpaid FMLA, thereby extending your total maternity leave. I now know for my next kid to change jobs immediately after becoming pregnant. It IS an FMLA loophole in that if you have not worked for 12 months, you are still covered under disability due to your OBGYN or midwife note and then later upon meeting the requirement, you, by law, can take the extra time. The rest of us who purposely waited to be at our job long enough to qualify for FMLA, have to eat up both at the same time, giving us a max of 12 weeks. It's crap.

yes, but they do not have to hold ur job on disability and the time u are on disability does not count towards FMLA leave. Essentially, you would need to come back for a period of time to get those hours and then take the leave.

On a personal note, that happened to me at my first job and I choose to come back right after disability ended and thought that I would take the leave later. I never did, because of work demands, but on another note I was told it is based on the business needs of the department, f they changed, then FMLA couldn't protect me even then. The business needs did change, but I was back at work.

XP: Cross Post FMLA Loopole

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