Employment Law/FMLA

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Question
I work as a salaried employee for a large, international real estate company as a property manager in an office with a dozen other property managers.  The company itself has at least 500 people, and I have been working here for over 2 years.  My wife recently gave birth, and under the guidelines of the state of California and the FMLA, I submitted a request to take 9 weeks off intermittently to bond with and care for my newborn.  I have 3 weeks saved sick leave, 2 weeks saved vacation time, and I plan to apply for 6 weeks of disability pay under the state PFL Act.  I submitted my request to my boss and HR approximately 30 days before the due date, but my wife went into labor 10 days early.  My boss has refused to approve the request for leave because he wants me to work 2 hours each day answering calls and emails from home while I am on leave.  I would prefer not to do this.  There are more than enough employees to cover my work load, but because they are working under different supervisors in different departments, my boss claims he does not have access to their assistance. The company, however, has had no problem making arrangements for another property manager who is currently out on maternity leave.

HR has not been helpful.  At first they made it sound like I would only have to chip in and work a few hours, as needed, in the event of an emergency during this period.  They have since revised their story implying that it would be better to work a couple of hours a day each day while on leave, and they would credit the hours to me accordingly.  While I understand this is a possible option, I would prefer to take the entire day's leave uninterrupted.

I've already agreed to revise my scheduled leave so that it does not interfere with his planned 2 week vacation to Costa Rica this January.  I've also agreed to break up the first portion of my leave and come into work several days a week in order to keep up with my work; however, I plan to take the last portion of my leave as a full block of 6 weeks and apply for benefits during this period under the PFL Act.  As I understand it, if I go into work any day of the week, my PFL benefits will be prorated according; therefore, I will earn the exact same amount of benefits whether I work or not.  As a result, I would prefer to take my full PFL benefits during this time and enjoy my leave uninterrupted.

Is it possible for my boss to withhold consent for my leave because he essentially wants me to work part-time and at no financial benefit to me during this period?

Answer
No. FMLA protected leave is your right under federal law. As it seems that your employer meets federal requirements to offer the leave, and you have met the time requirements to take advantage of the benefit, there is nothing the employer can do about it. Please make sure that there are at least 50 employees within a 75-mile radius of your particular office for FMLA qualification purposes.
What the law states is that you need to give an employer as much notice in good faith when a serious medical condition occurs that qualifies for FMLA protected leave. You have done so, in my opinion, as you gave your employer approximately 30 days notification. Because your wife went into labor early, we can take off 10 days and make the notification 20 days, but that's still enough time, in my opinion.
Now, an employer does not have to offer intermittent FMLA. However, if the employer has done so before, then the employer has set a precedent and must offer the same leave status equitably among all other employees. The burden of proof, in a court of law, would be yours.
My advice would not to take intermittent leave, but to take full benefit of FMLA. Intermittent leave, unless absolutely necessary, in my experience, tends to become messy and not well documented.
While out on FMLA protected leave, do not work. Period. You do not have to abide by any work schedules at all while out on leave and your employer cannot retaliate against you in any way for refusing to do so. This is your time as per federal law. Remind your employer of that and remind your employer that violating FMLA regulations is a federal, not state, offense.

Shannon M. Reising, MSP, PHR

Employment Law

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Shannon M. Reising, MSP, PHR

Expertise

FLSA, FMLA, Title VII, EEOC, AAP, ADAA, Workers Compensation, Payroll, HR Development and Training, Industrial/Organizational Psychology. My approach is from a scientific-practitioner perspective. Rather than basing ideology on pure white-paper study, I answer with a baseline of critical thinking seated in my position as an HR professional. I understand both the psychological underpinnings of both employers and employees, and how the law may be interpreted and applied in countless situations.

Experience

Over 10 years in HR of both non-profit and for-profit organizations ranging in size of population from 20-500 .

Organizations
Notary Public, HR Certification Institute, Society of Human Resources Management, NC Coastal Society of Human Resources Management, American Psychological Association

Education/Credentials
BSBA, MSP, Current Doctoral candidate in I/O Psychology, PHR accredited

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