AboutThomas R. Ballas Expertise I will take questions about EEOC complaints, ADA, FMLA and most Human Resource issues. I am an expert in the Railway Labor Act and collective bargaining agreements.
Experience I have 36 years experience in the rail industry, 16 as the lead company negotiator for all Section Six talks.
Education/Credentials BA in Psychology, PHR and SPHR Certifications.
Question QUESTION: I am a male and was recently working for a company that offered paternity leave under FMLA (in the state of Washington). I did everything I needed to qualify for my leave, and communicated my intentions more than 60 days in advance of the leave. A few weeks after my baby was born (but before I took my leave) I was terminated from my employer (they claim one thing for the termination that's completely untrue -- WA is an at-will employment state so it doesn't matter...). Anyway, my leave that I planned to take was fully covered by my accrued sick time that was lost when I walked out the door -- my question is: do I have any rights to my FMLA leave?
Thanks!
ANSWER: Chad:
I am not sure I understand. You were terminated, so you do not require a FMLA leave - you are not working. If you are asking if the company owes you the sick time you were going to use to continue your pay, the answer is contingent on Company policy. There is not state law that says sick time must be paid out when leaving the company, indeed, not requirement for sick or vacation time whatsoever. From the Washington state web site, http://www.lni.wa.gov/WorkplaceRights/LeaveBenefits/VacaySick/default.asp
"An employer is NOT required to give workers paid holiday, vacation, sick or bereavement leave.
Paid leave for holidays, vacation, sickness or bereavement following the death of a close family member are considered “benefits” that may be paid by the business under a policy, written agreement, personal contract, oral agreement, collective bargaining agreement or other form of agreement. There are no state laws requiring that such benefits be given. If the business agrees to give these benefits and then does not do so, workers may sue the business in a private legal suit in small claims court or through a private attorney. L&I does not enforce these agreements."
Hope this helps.
Tom Ballas
---------- FOLLOW-UP ----------
QUESTION: Thanks, Tom!
My question is more centered around that fact that paternity leave at my former company, under FMLA, is a benefit that every employee is entitled to. The fact that I was terminated after I qualified for the benefit (and before I opted to take it, when I could have taken it immediately after my child was born), is my central question. Do I have any rights to this paternity vacation now that I am no longer with the company but have qualified for the benefit?
Thanks!
ANSWER: Chad:
FMLA is the leave itself, and if you qualify for the leave while you were working, it means you must be given the time off. It does not mean the time off is paid, unless your Company has a policy that says it is paid.
What you described in the first question is you were dismissed before your FMLA, and paid sick leave, began. If the company policy says you lose your sick leave when you leave the service, FMLA has nothing to do with that policy. And, since you no longer work, you do not need the FMLA.
If you lose your sick pay when you separate, which is what you stated, then your qualifying for FMLA does not over ride that company policy.
Tom Ballas
---------- FOLLOW-UP ----------
QUESTION: Hi Tom,
We're getting closer -- thanks for your help!
I only mentioned the sick time in my first question so that you knew that I had plenty of sick time accrued to cover the FMLA leave (under FMLA, you can use your sick time, vacation time, etc. to cover your leave, and I would have used a large chunk of my sick time to cover the 6 weeks).
Additionally, the company that I left does have a policy where it covers 60% of the first 4 weeks of the FMLA leave. The additional 40% plus the added weeks would have been covered by my sick time, which I lost once I left the company (my vacation time was paid out as required by law).
I guess my primary question is that FMLA leave for fathers at my previous company was an added benefit, and when I qualified for the benefit (i.e. when my daughter was born) but before I took the benefit leave I was terminated -- do I have any rights to this benefit (i.e. can I cash in my sick time for the time I had requested off under FMLA) now that I am no longer, not by my choice, with this company any more?
I am willing to talk in person with an attorney if there is any chance that I have rights to any of this benefit. Do you recommend that I do this?
Thanks!
Answer Chad:
You qualify for FMLA on the basis of the laws criteria, not the Company criteria. If you qualify, the Company must give you FMLA. They have to give it to new fathers, just like the do mothers. It is not a company benefit.
FMLA does not address pay issues. That is left to Company policy.
What you describe is a Short Term Disability (STD)policy. Typically, such policies are for the benefit of employees if THEIR medical condition is such that they cannot work. I have not seen such a policy that covers an employee who takes FMLA for the birth of a child, the caring of a parent, etc.
Also, the STD policies that I have seen cover only employees, and the coverage ends when you leave the service of the company.
I do not think you have rights to the STD pay, though you certainly can discuss it with an attorney.
