Published on March 1st, 2016 by Alan L. Sklover
“ The cure for anger is delay.”
THREE BRIEF ACTUAL CASE HISTORIES: (1) Aquilino was a well known agricultural economist employed by an industry trade organization in Washington, D.C. His work visa was sponsored by his employer, and by the terms of his visa, if he was no longer employed by his employer, he and his family would have to return to their home country within ten (10) days. After a new Executive Director was hired who did not seem to be a “fan” of his, Aquilino had concerns that his position was insecure. Losing his job would entail Aquilino and his family having to depart the U.S. almost immediately. Aquilino and his family, however, wanted to remain in the Washington, D.C. area. Aquilino needed to find a new position before he might be laid off. He just needed some time.
(2) Margaret was a bond analyst for a large international bank. Over the years she had been awarded a significant amount of stock options. Each year, a large number of options vested. However, if she lost her position she would no longer be eligible for stock option vesting. In just six weeks, a very large number of stock options would vest. However, after receiving a poor review, she was concerned she might be let go before they vested. Margaret needed to remain employed for another six weeks. She just needed some time.
(3) Kevin and his wife had made all arrangements to adopt a child, which was scheduled to take place in about sixty days. At work, without warning, Kevin was placed on a Performance Improvement Plan (sometimes called a “PIP”), which contained a warning that, unless his performance improved “completely” in just 30 days, he could expect to be terminated. The problem was this: if he was no longer employed, the adoption process would come to an immediate halt. Kevin just needed to remain employed for 60 days, in order to complete the adoption process. He just needed some time.
Aquilino, Margaret and Kevin all managed to get the extended time on the job that each needed, and so all were able to navigate to get what they wanted, by making an honest application to each of their employers for a Family Medical Leave Act (“FMLA”) leave of absence. FMLA provides employees in companies with 50 or more employees up to 12 weeks of unpaid leave to attend to a medical or emotional difficulty, injury or illness, and the right to return to their position afterward. The law has widespread applicability, great flexibility, and very significant effectiveness – especially when you “just need some time.”
Aquilino had a teenage daughter with an eating disorder. Margaret had a mother who was in need of assisted living, but was living with Margaret while they sought a good home for her. Kevin’s wife was so nervous about losing out on the possibility of becoming an adoptive mother that she was having nightmares and difficulty eating. Aquilino, Margaret and Kevin each spoke to their family members’ therapists, doctors and health care providers, who in each case were willing to certify that each of their respective loved ones would benefit by having him or her spend more time with their loved one.
By extending his employment for 12 weeks, Aquilino got a new job, and his family was therefore able to remain in the Washington, D.C. area. By extending her employment, Margaret got the vesting of her stock options she sought. By extending his employment, Kevin and his wife got their dream come true: a baby son.
LESSON TO LEARN: You should not underestimate the utility of the FMLA leave of absence in your own work life or its potential to help you and achieve your own personal and workplace-related goals.
If you ever have a need to “e-x-t-e-n-d” your employment, and either you or a family member have a medical or emotional difficulty that would be helped by your having time off, please consider the many potential benefits of the FMLA law.
WHAT YOU CAN DO: If you need up to three months’ extension of employment, don’t hesitate to see if you might be entitled to a FMLA leave of absence. A few thoughts to help you if you do:
1. Make sure you get and follow your employer’s FMLA policies and procedures. Although there is one federal FMLA law, each employer may have its own ways of complying with it. You should contact Human Resources to get all of your employer’s FMLA policies and procedures, so that you carefully follow them.
In general, a FMLA leave of absence is unpaid, but employee benefits should continue during your leave. That said, some employers permit employees to use accrued sick days and vacation days to get paid during their otherwise-unpaid FMLA leaves, and a few employers even pay employees their full salaries during FMLA leaves. Find out what policies or practices your employer follows, so that you take full advantage of all benefits and perquisites that are available to you.
Act Wisely! Consider using our Model Memo Requesting FMLA Information, Forms and Procedures from Human Resources. It shows you “What to Say and How to Say It”™ and makes a permanent record of your request. Just [click here.] Delivered Instantly By Email to Your Printer.
2. Bear in mind that you will need the cooperation of your (or your family member’s) medical or mental health care professional. One part of the FMLA approval process will be a requirement that your (or your family member’s) health care professional will have to certify that your presence at home would be beneficial to your (or your family member’s) well-being. This “FMLA Certification” is nearly always done by use of your employer’s “FMLA Certification” form, something you will need to get from your employer’s Human Resources staff, and give to your health care provider to sign and return.
You would be wise to discuss this with the health care professional as a very first step, because without the cooperation of the health care professional, the leave of absence will not be granted. Rest assured, though, that almost all health care professionals sign these FMLA certifications, and are quite understanding and cooperative about doing so.
3. Bear in mind, too, that the law does not require you to return to your job after a FMLA leave of absence. Quite often clients ask: “Do I have to return to my job after my FMLA leave of absence?” The answer is clear: the law does not require that you do so.
In order not to “burn bridges,” however, it may be advisable to notify your employer about two weeks before you are scheduled to return that you will not be doing so. This provides the customary “two weeks notice.” Of course, if you have agreed to give more notice, you should do so. This is a kind of resignation, and all resignations should be made in a gracious fashion.
It is quite important to bear in mind that if you tell your employer that you are not returning to go to another job, or to go back to school, or other reason, but that you are not returning for the same reason for which you were certified, that is, the health-related problem you or a family member are facing.
If you tell you employer that you are taking a new job elsewhere, or going back to school, then your employer has the legal right to require that you repay the amount of health insurance and life insurance premiums that the employer paid on your behalf during your leave of absence. It is for this reason that we strongly recommend that you put into your “I am not returning” email memo that you are not returning to continue to take care of your (or your family member’s) health-related problem.
Consider using our aptly named “Model Memo Advising You are Not Returning After Your FMLA Leave.” It shows you “What to Say and How to Say It”™ and makes a permanent record of your resignation, and the reasons for it. [click here.] Delivered Instantly By Email to Your Printer.
4. Here’s how to Understand FMLA Better: The 50 most commonly asked questions about FMLA are answered in one of my earlier blog posts. We have compiled a list of the 50 most commonly asked questions about FMLA, and answered them, all in one blog post. To review it, just [ click here. ]
P.S.: What do you do if your request for a FMLA Leave of Absence is denied? Use our “Model Memo Complaint of FMLA Violation or Retaliation to HR.” Very effective. Shows you “What to Say and How to Say It”™ Just [click here.] Delivered Instantly By Email to Your Printer.
SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road.
Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” Making sure you are taking advantage of all employment-related laws – including FMLA – is one way to do just that. Learning the “tricks of the trade” is what SkloverWorkingWisdom™ is all about.
*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.
Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.
Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.
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