FMLA eligibility question

lsteiner0321 · March 2017

Are any of you ladies familiar with FMLA and can give me advice?? I think my HR lady is really trying to screw me.

So I work for a company that offers STD at 60% and we go by FMLA eligibility.

I meet all the requirements except the 12 months (if I deliver early)

My anniversary date is April 18th and my due date is April 15th.

At my HR's discretion, if I make it to my due date she will allow it and I will meet my anniversary date and be eligible for FMLA. (she already gave me a Notice of Eligibility stating that if I made it to my due date, I will qualify as eligible)

However, if I don't make it to my due date then I will not qualify because I did NOT reach the 12 month requirement for FMLA. She stated that the 12 months has to be from my anniversary hire date and that's how the company has always measured it.

I have found no written rules in the handbook specifically mentioning that it has to be my year anniversary date & I can't find that in the FMLA guidelines (only that it has to be 12 months & 1250 hrs)

I've had meetings with my manager & CEO but since they are clueless about it, they have to go by what my HR tells them.

I can use any personal time I have which is about 2 days roughly...so if I make it to the 12th or 13th then I will be ok. But first year employees do not receive vacation time nor any unpaid time off so I have NO other time I can use to bridge the gap if I deliver my baby early. And I will be terminated since I will be taking a leave absence for so long.

I have worked plenty of overtime as well (as of right now I am almost at 2080 hrs since I have been working at this company) but even though I surpassed the hourly requirement I would still not qualify and there's nothing they can do if I have to leave earlier than my anniversary date.

I'm 37 weeks pregnant, I just pray that I make it to 40 so I dont have to deal with any of this, but I need to know what to do just in case he's early. I'm worried about losing my job, my STD and my benefits if I am.
Does it HAVE to be my anniversary hire date??

It just seems so unfair

catem07 · March 2017

So basically if you deliver before April 12 you will be fired? I hate to say it but I think they are probably within their rights. 12 months could definitely mean a full 12 months--from hire date to exact anniversary. I don't have any experience with this though, so perhaps I'm wrong. Good luck.

Are you a FTM with an uncomplicated pregnancy? If so there's a good chance you won't go into labor before your due date.

beemaya83 · March 2017

To be eligible for FMLA, the employee must be employed for 12 months. It seems to me that the anniversary date will mark the required time frame.

SnarkasaurusRex · March 2017

My school district's policy is also that I must be actively employed for a full 12 months before I am eligible for FMLA. From what you are saying, it does sound like they are within their rights to deny your FMLA eligibility. I don't think your HR rep is trying to screw you - the timing of your employment and pregnancy just happen to fall into that rough area.

Like PP said, if you are a FTM with no complications, you will probably make it to your due date. I think the average gestation for a first pregnancy is somewhere around 41w1d.

rachelmiller03 · March 2017

I am in HR, and I administer FMLA. Is your STD company paid, or employee paid? If I'm understanding correctly, you are saying that you will not receive STD payments if you do not qualify for FMLA?

Your HR is correct, that if you deliver before your due date, you do not qualify for FMLA, because you have not yet full-filled your 12 months. That being said, I don't think it means you are automatically fired, it just means that your job is not legally protected, so you may not be able to file a claim with the Department of Labor if they do replace your position. I think it was actually really kind of her to tell you if you made it to your due date, she would still let you file for FMLA, although your anniversary date is not quite met.

Did she specifically say that they would replace you while on leave? I would speak to your supervisor, and ask them what their plans are for your leave. Are they going to bring someone in temporarily, or have someone else in your department cover your work load? If they do plan to replace you, will there be a similar position available when you return? They may have every intention to keep your position on hold until you return, regardless of your FMLA status.
@kcasset, I think you are in HR too, do you have anything to add?

ebloom3 · March 2017

I agree with the previous comments. Per FMLA you have to work 12 months and 1,250 hours.

Now, there was a teacher in my district who I know who had a child her first year on the job. I think the district let her use her sick leave (what little she had) and then let her go unpaid for the remainder of the 6 weeks (we can take up to 12 in my district with 6 paid out with sick leave). I think that is entirely dependent on the employer and is not written into FMLA.

I would also add, that if your pregnancy is going as expected and you have no medical issues, you should make it to your due date. My first two babies were born at 40+3. My doctor told me to be prepared for this one to be born at 40 (and maybe beyond 40).

soon2bmomof3-2 · March 2017

Wow I've never heard of that. I've been employed through all 3 of my pregnancies and my jobs never tried to screw me like that. They always abided by FMLA laws even though technically I wasn't there for 12 month on my first pregnancy or my current pregnancy - I've only been here 6 mos and due in app 3 weeks. Try talking to your direct supervisor and see if you can work something out. If you perform well then they should try and keep you instead of firing you. It just doesn't make sense companies aren't usually that hung up on dates as long as the employee is performing well when it comes to FMLA. Goodluck. Let us know what they say..

BecNJake · March 2017

I would also add that if you have more meetings/ interactions about this with your manager and/or CEO make sure they know you really enjoy your place of employment and feel like it's the right fit for you. Employers usually don't want to have to train people to replace you, especially if things are working out well and it's just a couple weeks in question. That being said, I know it's a very stressful place to be in. I was basically fired for being pregnant with my first baby (it was a small company) so I understand the concern you have. Hugs to you and I'm hoping it will all work out. Every mama is different, but I went 41+1 with my first baby- it seems to be pretty common! Hoping the very best for you!

lsteiner0321 · March 2017

This is my 2nd pregnancy. I'm 37 weeks and 3cm dilated so there's a chance I may not make it to my 40w. That's why I started asking her what would happen if I were to leave earlier.

She said that she will terminate me if I have to leave before then.
I have met with the CEO and addressed my concerns and he has no clue about FMLA and said he has to go by what HR says.
I have already been given my eligibility paperwork stating that if I leave by my requested date (April 15th) then I am eligible for FMLA.
From my understanding, she's not going to change that paperwork and it will be submitted to the DOL that i am eligible....but she will terminate me if I do not make it to that date since I will not be here
But that I could reapply once I am ready to come back. -_-
My managers have all stood up for me claiming this is unfair and expressed that they want me back since i am a very hard worker and i have never had any kind of disciplinary actions.
I don't understand why she is not being so helpful and if my position will technically still be here, it's not hurting the company for me to be gone....Just me.

catem07 · March 2017

I know this is unhelpful, but what a terrible person. She's within her rights, sure, but man. That's some cold shit right there.

KirstinH88 · March 2017

I'm not sure about the whole exact year situation. But my HR person said they count "butt in seat" hours. So they will go back the full 12 months if needed, but I have to have the amount of hours required (1250) as actual hours worked, not vacation or sick time. I'm sorry you are stressing about this. Hopefully baby comes closer to due date so that you don't have to worry about it.

Taylor72 · March 2017

this is probably an UO (or maybe even a FFFC) around here but I'll give my 2 cents anyways.... If you were to go now, at 3 weeks early, and IF you are making minimum wage, that is roughly $600 in benefits that you want them to pay out. Now in order for a company to provide FMLA they have to employ at least 50 people, what HR does for one they must do for others as to not get sued for not being fair. So in this case, they would essentially have to pay 50 employees 3 weeks of pay at 60% in order to be fair....or about $30,000. It is unfortunate and sucky if you don't make it to your due date, but In my opinion...she is doing you a favor by "giving you" those 3 extra days. She is only doing the job that she was hired for and it isn't her fault, it's just policy.

one last thing....as someone that works in a federal prison, falsifying FMLA documentation for paid benefits is a federal crime (again, $600 is minimal, but 30k is a whole different ball game) and I wouldn't be willing to do federal time for someone else, so I can't really blame her.

catem07 · March 2017

My point is that there's no rule that says OP has to be terminated just because she doesn't qualify for FMLA protection.

KaraMG35 · March 2017

Can you return to work after birth until your anniversary and then start FMLA? Sounds awful but my aunts' sister did something to that effect. Gave birth and the following afternoon attended a conference she was required to go to.

MWoodside · March 2017

The 12 months is part of FMLA for sure. Your job isn't protected if you don't meet that requirement. I can't imagine it's solely hr's decision to terminate. I worked in management for 8 yrs and hr didn't make those decisions in a vacuum, management was heavily involved.

Fingers crossed you make it to the one year mark so none of this is an issue.

SnarkasaurusRex · March 2017

I also wouldn't be so quick to hate on the HR rep - I know that DH's company got nailed on some FMLA violations a few years ago so they are very by the book with it now to prevent stuff like that from happening again. It could very well be that your HR department is in that same situation, and if it's company policy that they terminate you if you miss that much time without FMLA protection, then they're within their rights to operate that way, as sucky as it is.

It's a good sign that your managers appear to want you back and that your HR rep is completely fine with your reapplying, so I think in terms of job security in the long term, you will be okay. It sucks to not be able to get the short-term disability payments, but honestly, a lot of people get nothing (myself included) but job protection when they go on maternity/FMLA leave, so I am sure with some careful budgeting you will be able to make due.

At the end of the day, though, I hope you are able to make it to your anniversary date so that none of this is an issue.

lsteiner0321 · March 2017

I think I'm just going to contact the FMLA enforcement at DOL to get clarification on this. I did find a lawsuit that was similar to mine that could set a precedent
(Pereda v. Brookdale Senior Living Facilities, Inc) so I'm going to find out if this would be the same situation. Because I do feel like it's discrimination and the manner in which HR has been. Since the beginning when I first contacted her, she's been lacking in correspondence and cold.
Yes, she did do me that "favor" by allowing my leave date to be a few days before my anniversary date however if it were that much of a big deal I could have saved personal time between my due date and the anniversary date.
I just feel like it would be discriminatory for her to terminate me before I became eligible if I do go into labor before, because it's a medical reason and an unforseeable event. I would understand if I were to schedule an induction or section but if it's nothing I can control and I'm already pre-eligibile for FMLA, termination would be wrongful. This is according to the ruling in the Pereda v. Brookdale Senior Living Facilities, Inc case that protects FMLA pre-eligibile employees.
So, I'm going to look more into this and go above her to find out because it just doesnt seem right to me and I'm uncomfortable with it.

https://www.employmentmattersblog.com/2012/01/fmla-protects-workers-even-before-they-are-eligible-for-fmla-leave/

MetsGirl18 · March 2017

I hope it's okay to be lurking from August. You're not eligible for FMLA unless you've been working there for at least a year at the time of your leave. The statute is very clear about eligibility. If you don't have any PTO to get you to your 1 year anniversary, unfortunately you're SOL. That case you cited is distinguishable from yours because the employee would've been there for at least a year at the time of her leave. It doesn't matter why you go out on leave early (and going into labor before 40 weeks is certainly foreseeable). You don't fall under FMLA protection before your 1 year anniversary. An employer can always be more generous than what FMLA provides, but there's no requirement to do so. You should be treated the same as any other employee with a medical condition though so if exceptions were made and a job was held for someone else who was out for an extended period of time prior to his or her 1 year anniversary, you should be given the same consideration.

I'm sorry you're dealing with this stress at the end of your pregnancy and hope this won't end up being an issue for you.

catem07 · March 2017

I agree with @MetsGirl18 that the Pereda case is not analogous to yours. She was going to take her leave AFTER she met the 1 year requirement.

"I just feel like it would be discriminatory for her to terminate me before I became eligible if I do go into labor before, because it's a medical reason and an unforseeable event."

I'm pretty sure that's exactly what can happen to anyone before they meet the FMLA requirements of 1250 hours/1 year. If you get sick with cancer and can't work after 8 months on the job, that's an unforeseeable medical event but I think you can be terminated for it.

KaraMG35 · March 2017

Yes the purpose of the one year clause is to also protect the employer from having people take advantage of them by taking a position only to turn around and immediately receive benefits/pay while they are out on leave. If you're tight for money/insurance and can't afford to lose that because you didn't wait so your baby would be born after the benefit date, then try to get back to work the next day (if they'll let you take a "sick" day) and work until your FMLA allowance date.

SnarkasaurusRex · March 2017

catem07 said:

-snipped-
I'm pretty sure that's exactly what can happen to anyone before they meet the FMLA requirements of 1250 hours/1 year. If you get sick with cancer and can't work after 8 months on the job, that's an unforeseeable medical event but I think you can be terminated for it.

This is exactly what happened to a coworker of mine last year. He was diagnosed with cancer after being employed for 6 months, and they ultimately had to terminate him because, from a financial perspective, they couldn't keep paying the rate for a long-term substitute for his position and they needed to hire someone new. Your company still has a business to run, and they need to make smart financial decisions. FMLA rules are pretty clear.

Also, most businesses are not going to classify a pregnancy as an "unforeseen medical event" because you can plan for a pregnancy, whereas you can't plan that you're going to get cancer. It's not your workplace's obligation to give you special treatment because your (from their perspective, presumably planned) pregnancy occurred before you would have met your FMLA requirements. I would think you'd have a hard time winning a discrimination argument when your employer can always come back with the fact that you knowingly got pregnant in a time frame that would cut it close to your FMLA eligibility (and if that sounds harsh, I don't mean it to).

For perspective, I wanted to switch school districts this year, but DH and I knew we wanted to try and have another baby, so we made the decision that I would stay in my current position to protect my FMLA eligibility just in case we got pregnant right away...which was a good choice, because we did. I'd be in the same position as you where I would not have any protection or benefits from FMLA.

MWoodside · March 2017

That case isn't like yours. have you considered that exceptions can't necessarily be made bc then the employer would have to make those for everyone?

lsteiner0321 · March 2017

@SnarkasaurusRex Just FYI,
I did not get purposely get pregnant. I was on birth control and breastfeeding at the time.
I just had a baby and he was 7 months at the time I found out with this pregnancy.

SnarkasaurusRex · March 2017

@lsteiner0321 I didn't say that you did; I'm saying that your employer can use that as a reason to not make special accommodations for you because a pregnancy is not the same type of an "unforeseen medical event" as something like an illness.

lsteiner0321 · April 2017

Ok
Now I really don't think it's just me and I'm not that pregnancy-raging-hormonal-crazy lady.
After all this, my team found out about my potential termination if I don't make it to my due date so my team lead asked the CEO if she could donate her personal time if I do not. (Something we are allowed to do and have done here before as long as it's approved)
The CEO whole-heartedly agreed because after hearing about this situation, he agrees it's kinda crappy but there's nothing that can be done.
HR threw a fit and tried to talk to my manager about it to get it overturned. Manager disagreed since the approval came from higher up
Then recently I emailed HR to see if I needed anything else and to find out how much my insurance premiums would be so I can go ahead and pay some in advanced which she basically responded by telling me to figure it out myself.
Definitely bringing this email to my manager and see where it goes from there.
Also, I think I overheard someone say our company may be looking into a Non-FMLA type leave so maybe this won't happen again.

I hope they do. I can see the business side of it now and I understand it, but for employees not trying to take advantage of the system and are gard-working people putting 40 hrs+ per week, it just seems unfair to get terminated when you're sooooo close to something.

pinkshades05 · April 2017

WOW!!! Your CEO is awesome and your HR lady is rude! I'm glad they're willing to work with you, though, so they can keep you at the company. That says a lot!

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