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TexLaw, Lawyer
Category: Employment Law
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Experience:  Contracts, Wrongful termination and discrimination
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I went to my supervisor in April requesting a LOA to work with

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I went to my supervisor in April requesting a LOA to work with my son during the summer. I was told this should be possible. I offered to file FMLA for my son or for myself at that time. I also offered to work for 2 additional weeks during the summer that were already planned for camp. Approx. 2 weeks later I was told that we didn’t have an LOA program and that I just needed a letter from my son’s physician stating her recommendation. I scheduled the dr. appointment and provided the requested letter to HR. The doctor asked me at that time if I needed FMLA which I declined in lieu of the letter requested. This took approximately another 2 weeks. School had already been out 3 weeks at this point and I was losing valuable time when I was told I would have to quit, therefore I could not work the 2 weeks I was available during the summer, and then re-hire in the fall. A resignation letter was requested with my last DOE, as well as my estimated return date. I never met with HR on any of the above. HR never contacted me on any of the above. I was out of the office for 10 weeks. I kept in contact with my supervisor. I called the week before my return to see if I needed to do anything special or report to HR, the answer was no. No one from HR discussed my return with me. I was not asked to fill out any type of “New Hire” information. I never packed my things, my desk was intact. My phone extension remained active, my email remained active, everything stayed in place. When logging in to our self help system I was showing as a new hire. I immediately called HR and was told I was a new hire - my previous 3+ years had been erased but I also was not entitled to new hire vacation because I had used it previously during the time that is now unrecognized. I asked about all the information regarding "re-hires" and was told there is none, that I wouldn’t find it. I assumed that a rehire would be reinstated – no one ever suggested otherwise.
Others have actually quit and left the company, which I did not do, but came back after up to a year and had their time reinstated. I explained and requested and did everything that was asked of me. Now trying to reinstate HR asked for the post-dated FMLA paperwork saying if I turned this in now, since it wasn't clear from April - June - they would go back and reinstate. I turned this certification in last week. Yesterday HR said that it was not good enough to qualify. If I go by the FMLA rules, they would have 5 days to tell me no and I would have the option to make other arrangements - but this was not what occurred - nothing was handled the way it should have been. Now HR is "giving me another chance" to get more detailed certifications - however, I feel like they will continue to deny them and I am wasting the effort. Do I have anything at all here? I do not use the company benefits and my 401k is not affected because the break-in-service was less than a calendar year so all I am wanting is not to start all over for vacation time.


My name is XXXXX XXXXX I will be assisting you with your legal question.

In regard to your question regarding your vacation time, if they are going to treat you as a new hire, then they have to give you the same vacation time as a new hire would get. They cannot count your time off as vacation time if they also want to count you as a new hire.

Essentially, this is an implied employment contract and you can sue for breach of that contract (i.e., the policy that new hires get 2 weeks vacation).

In regard to the other issues, I need further information. You say you went to the doctor to get a note. I'm not sure I understand why this wasn't simply treated as FMLA leave. In order to analyze that further, I need to know more about what you needed the time off for and what the doctor's note said (in specifics are necessary).
Customer: replied 3 years ago.

I just asked for a LOA - I did offer to file FMLA but I was told by my boss that I did not need to, that HR just wanted a letter from his Dr. I asked what the letter needed to say - that he is developmentally & speech delayed and would benefit if I worked with him all summer (in lieu of paying someone else to do this). I was told I had to quit and re-hire, which I did. Now the HR Director says its my fault for not asking for a packet directly from her as my supervisor (IT Director), his boss (EVP General Counsel), and the VP of HR who all discussed my request prior to my leaving are not FMLA specialists. And are now denying the back dated FMLA paperwork that they asked for after the fact, as not a qualified reason for FMLA.

Thank you for your response.

Based on what you have told me, I am not sure that this would qualify for FMLA either (without further detailed information about your son's condition). FMLA is only allowed when there is a "serious health condition" involved. A "serious health condition" entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves either (1) inpatient care or (2) continuing treatment by a health care provider.

The definition of "inpatient care" is relatively straightforward. Inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care. The term "incapacity" for purposes of this definition means inability to work, attend school or perform other regular daily activities due to the serious health condition, its treatment, or recovery from it.

The definition of "continuing treatment" encompasses numerous different scenarios, which are discussed in detail in the regulations. A serious health condition involving continuing treatment by a health care provider includes the following:

1. Incapacity and treatment. Incapacity and treatment requires a period of incapacity of more than three consecutive, full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(a) Treatment two or more times within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider; or

(b) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

The two treatments referred to in (a) above and the initial treatment referred to in (b) above must be in-person. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

In-person treatment or the regimen of continuing treatment may take place after the period of incapacity has ended and the employee has returned to work. Therefore, leave that may not have qualified as FMLA leave at the time it was taken may later meet the requirements of FMLA leave and need to be retroactively designated as such.

2. Chronic conditions - Chronic conditions include conditions that (a) require visits at least twice a year for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (b) continue over an extended period of time; and (c) may cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

3. Permanent or long-term conditions. Permanent or long-term conditions that qualify as a serious health condition include a period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. For example, Alzheimer's, a severe stroke, or the terminal stages of a disease would qualify as a permanent or long-term condition entitling the employee to FMLA leave.

4. Conditions requiring multiple treatments. Conditions requiring multiple treatments that qualify as a serious health condition require either (a) a period of absence to receive multiple treatments by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, for restorative surgery after an accident or other injury; or (b) a condition that would likely result in a period of incapacity of more than three consecutive, full calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

Given the above-stated information was the time off you were requesting needed for inpatient care or continuing treatment by a health care provider?
Customer: replied 3 years ago.

The Dr. listed it as No. 2 above - with the patient being a minor and requiring assistance with all care. That being said, if it does not qualify - is that all on me or is there any blame on the company since this has been asked for after the fact?


Well, I think you have the question backwards. If it does qualify and you should have got FMLA leave instead of just taking off (or undergoing a temporary termination), then it is the employer's responsibility to designate the leave as FMLA leave.

So, if the doctor certified the leave as qualifying for FMLA treatment, then you have a case against your employer for violation of the FMLA. It is not on the employee to figure out whether FMLA applies. It is the employer's responsibility to provide FMLA leave to the qualifying employee.

To file an FMLA violation complaint, you would contact the US Department of Labor at:

Wage and Hour Division XXXXX NW
Room S-3502
Washington, DC 20210
Contact WHD
Tel: 1-866-4USWAGE (1-866-487-9243)
TTY: 1-877-889-5627

Employers can retroactively apply FMLA leave, and your employer can reverse this situation, but you need to communicate clearly that this is what you want them to do. If they need clearer certification from the doctor, then you should request that the doctor write a letter stating that the leave you took does specifically qualify for FMLA.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am credited by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Kind regards,
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