Comments on: Job loss and FMLA

Question: Job loss and FMLA

tickettrader — Mon, 10 Mar 2008 22:00:59 -0800

My job is scheduled for termination at the end of the month. My wife is pregnant and could possibly be placed on bedrest about the same time. If I apply for FMLA before my termination date, would my employer have to honor my claim? My employer is unaware of the pregnancy AND I'm only speculating that bedrest could be ordered.

Why do I care? If I don't find a new job within the company before my termination date, I'm looking at an additional $900/month in COBRA payments for the 12 weeks of FMLA.

Additional Information:

US Dept of Labor Site

I barely know my boss and he works at a different location.

It is a very large US corporation.

My entire department is being shut down so my job loss is not due to my personal performance - at least I hope.

By: rhizome

rhizome — Mon, 10 Mar 2008 22:27:12 -0800

Talk to HR, I bet they'll know more than your boss.

By: hal_c_on

hal_c_on — Mon, 10 Mar 2008 23:14:25 -0800

DO NOT TALK TO HR. THEY DO NOT HAVE YOUR BEST INTERESTS AS THEIR GOAL!

Apply for FMLA, and make your first date about 3 days before your actual term date. Send HR a letter specifying your FMLA leave will start on that day...about 2 weeks before that date.

Talk to a lawyer, talk to a lawyer within the company who has NO INTEREST in you continuing to receive money from the company.

Talk to HR ONLY after you have figured out whats going on.

Good luck!

By: zippy

zippy — Tue, 11 Mar 2008 01:56:49 -0800

Here you go. The Department of Labor's FMLA FAQ addresses your question directly:

Q: Are there other circumstances in which my employer can deny me FMLA leave or reinstatement to my job?

In addition to denying reinstatement in certain circumstances to "key" employees, employers are not required to continue FMLA benefits or reinstate employees who would have been laid off or otherwise had their employment terminated had they continued to work during the FMLA leave period as, for example, due to a general layoff.

By: pardonyou?

pardonyou? — Tue, 11 Mar 2008 08:05:41 -0800

The relevant regulation provision is 29 CFR 825.216(a)(1):

If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration.

The employer bears the burden of proving that your position would have ended if you had been at work, but since you acknowledge your understanding that your position is scheduled for termination, it won't be tough for them to meet their burden.