I Could Write a (Really Boring) Book about FMLA [HorroR Stories] [Book Week II]

In honor of another Book Week at FaN, I will share with you Chapter 3 in my book entitled: FMLA, what the Fuck? Please buy it, please, please, please. I expect it to be on the shelves sometime in the next decade.

There is nothing more confusing than leaves of absence. Ask anybody. In the immortal words of Fletch: “Can I ask anybody now?” (I love Fletch. He was probably a nightmare employee, never went to Open Enrollment meetings, saw prostitutes constantly, but he’s just so damn loveable. And, hey, speaking of Book Week — Fletch was a book! A whole series of books as a matter of fact. Here’s a hint though, I read the first Fletch and the book Fletch wasn’t half as loveable as Chevy Chase’s Fletch. I’m just warning you, I’d hate for you to be disappointed. Plus, there is this whole teenage hooker plot line that was most definitely not in the movie. Consider yourself warned.)

Comments and questions that came to me in response to my last 2 posts (here and here) on leaves made me think that maybe I wasn’t explaining it well and they’ve prompted me to bore y’all one more time. This time I’m just focusing on one thing, and it’s the one thing that I have to explain more than any other thing:

There is a difference between leave programs and programs that pay you if you are on leave. This is the concept that employees and others confuse more than anything else. For example, after someone read my Paternity Leave post, I received an email about someone who recently had a baby. This woman’s child unfortunately was born with special needs. The email stated: “She took 6 weeks of maternity leave when the baby was born, then came back to work for a bit while the baby was still in the hospital. When the baby was released from the hospital, she decided to quit her job because she needed to stay home to care for her child. Her employer then denied the remaining 6 weeks of her maternity leave. Is that legal?”

So, your initial reaction might be the same as mine: “Huh?” Well, she quit her job, so that’s the ultimate leave of absence, right? Right. But I think what’s happening here is there is some confusion between taking leave from work and being paid for leave.

I. Unpaid Leave

If you are working in the US for a company that employs at least 50 employees within 75 miles and you have been at that employer at least one year and worked at least 1,250 hours in that year, then you are entitled to take up to 12 weeks (480 hours) of unpaid, job-protected leave under the Family Medical Leave Act (FMLA). This leave protects your job: you must be reinstated to your previous position, or one with equal pay, status, and benefits. It also protects your benefits: the employer must keep you covered under any group health plan under the same terms as if you were still working. You are also entitled to any benefit you would have received if you were still working, so, for example, vesting on your 401(k), or let’s say everyone received a $500 Amazon gift card for the holidays.

Some states, like California, New Jersey and Washington have a similar leave program. In California, it is the California Family Rights Act (CFRA). This law has the same eligibility as FMLA and is also for 12 weeks (480 hours). Since many of the reasons that you can take CFRA are the same as those for FMLA, those 12 weeks run concurrently and everyone just sort of forgets about CFRA.

Where leave programs like CFRA can come into play is again, in states like California, where they have separate disability leave programs for pregnancy. In California they have Pregnancy Disability Leave (PDL) that gives you 4 months (88 work days) of protected unpaid leave if you are disabled due to pregnancy. “Disabled due to Pregnancy” includes: any complications that you may have, severe morning sickness, doctor ordered bed rest, childbirth, and recovery from childbirth. There is no other eligibility. What’s neat here is that whereas FMLA and CFRA will run concurrent, since the reasons for leave are usually the same, CFRA cannot run concurrent with PDL. So, once you are technically no longer disabled due to pregnancy, you have another 12 weeks of unpaid leave available to you.

Just a side note about PDL, it also states that not only are you eligible for leave, but also to be reassigned to a different position while you are pregnant. Let’s say you are an x-ray tech and it’s dangerous to your fetus for you to be working in the radiology lab. Just get yourself a doctor’s note and they have to reassign you to another position.

So, all this leave entitlement is pretty sweet, huh? You get a amenable doctor and he can write you out of 5 ½ months of work! Sure, if you’re Ivanka Trump maybe. But for the rest of us schlubs who have, like mortgage payments and stuff, you’re probably more interested in section II:

II. Paid Leave

So, I didn’t bold the word “unpaid” up there for nothing. All the alphabet leave laws that exist out there provide you the time but not the pay. I think when many of the average employees out there think or say the word “leave” they are thinking of the things here in section II, but it really is about the things above in section I.

The pay part is up to a few different factors:

The Company- some companies make you exhaust all of your accrued paid time off while you are on leave, thus turning your unpaid leave into paid leave at the expense of your sick and vacation balance. Other companies have private disability insurance that will pay you while you are out (usually called Short Term Disability or STD (hee hee—STD)), or what they call “gap” insurance that will pay you the gap between what the state (see below) will pay you and what you normally earn. I have even heard of some companies that will continue to pay you your regular salary if you just sign over any state disability checks you’ve received to them. (Which I suppose is a form of gap insurance).

The State – most states have some sort of state disability insurance (SDI) that will pay you a portion of your earnings while you are “disabled.” This disability has to be supported by a physician’s certification. So, when pregnant, you can think of the SDI lining up with the PDL from above. Whenever your doctor has you out as “disabled due to pregnancy” you can apply for SDI. Now, let’s say you aren’t “disabled” anymore but you still want to take time off to care for your new baby, this enters into the realm of what they call Paid Family Leave (PFL) in California. I hate that they use the word leave because it’s not really a leave. But anyway, check your state’s .gov or your employee handbook to see if you have one of these programs. If you’re a new daddy, then you only qualify for PFL, because again, this is just for you to care for a family member, not yourself.

Rule of Thumb: The leave programs don’t pay you and the pay programs don’t guarantee your job. They work together, sort of, and not just to confuse the heck out of you, but to try and give you some stability and peace of mind when you probably most need it.

So, in the scenario that prompted this post, I imagine that this new mom was denied some kind of pay that she would have received for her leave, and not the leave itself because you can’t take a leave of absence from unemployment (believe me, I’ve tried). Without knowing all the details, I’m guessing that her company had some kind of STD or other pay program that they called “maternity leave” that when her employment status changed to “un” she was no longer eligible for. They might have also been referring to whatever state disability program they were in. They aren’t California residents, so I don’t know the SDI eligibility in their state, but sometimes you have to be employed to receive SDI. (By the way, in California you just have to be employed when the disability occurred or started, and you had to have paid into the SDI program at some point).

OK, now for the tips section:

Tip #1: I ALWAYS advise my new mommies to NEVER quit until they have exhausted everything. I’ve had women come to me and say “My baby is due in a month and I’m not coming back.” To which I say: “Take all the leave that you are eligible for, apply for every SDI, PFL, STD, whatever you can get. Use all your sick time. Then, come back to work for one day and resign.” Here’s my logic: (By the way, don’t tell your HR your plan unless you trust your HR Lady, I don’t want to get you in trouble)

• If you are eligible for FMLA, CFRA, etc. then the company has to keep you on their benefit plan and you only pay the portion that is usually deducted from your paycheck. When you quit, you are transitioned to COBRA which means that you are paying full price.
• If your company has a separate vacation and sick time policy as opposed to one of those Paid Time Off plans, then you are paid all of your unused vacation hours when you quit, but not your unused sick hours. You earned them, so use them before you quit!
• SDI and PFL are a tax that comes out of all of your paychecks. So apply for it when you are eligible for it. I don’t get it when people use 100% of their accrued sick or vacation time for leaves rather than applying for SDI or PFL. Why?
• If you coordinate your SDI and/or PFL payments with your sick and vacation time this will extend the amount of time you are paid while on leave. I write more about this in my previous posts, but basically it breaks down to 60% of your earnings are paid by the state and 40% by your sick and vacation time. Using less sick and vacation hours=using more for longer and getting paid out more when you leave.
• If your company has any sort of retirement plan, stock plan or anything that vests or is awarded based on seniority, it might benefit you to stay “employed” for as long as you can. Leaving earlier might leave some money on the table.
• Some employers reserve the right to ask you to reimburse them for the employer portion of your benefits premiums that they paid for you while you were on leave if you do not return from leave. Whether they actually do this or not depends on the employer, but why take the chance? Return from leave. Even if it’s just for 1 day, at least you returned, right?

Tip #2: If you are pregnant, or if your wife/girlfriend/acquaintance is pregnant, then take some time and educate yourself on not only the leave programs you are eligible for, but also the pay programs. Talk to someone in the HR department; find out how your company deals with leaves, if they have some sort of awesome policy that pays you twice your salary for a month or something like that.

Tip #3: At the risk of repeating myself: If your state allows it and you are receiving SDI or PFL, coordinate, coordinate, and coordinate! If you don’t do this you are giving up money. If your HR department doesn’t know what this means, educate them!

Tip #4: Make sure your company gives you something in writing that designates your leave as FMLA or CFRA or whatever and is explicit about how much of your time off is being deducted from those allotments. It’s a technicality to be sure, but it might save your bacon down the road if something goes south.

Tip #5: Give your HR Department a break and notify them of a leave as early as you can. Technically you have to give 30 days’ notice, but we all know shit happens, right? Just help them out, for me.

OK, that’s all I can think of right now. Please tell me you understand the difference now between leave of absence and disability insurance. And please tell me how much you can’t wait to read my entire book on FMLA. It’s going to be these same 3 posts repeated over and over. Sounds informative! $9.99 please! Please? Even if you lie to me, just nod your head, it’s ok, I won’t know. Hopefully you don’t work for my company. Now let’s go to lunch, my treat. I’ll order a steak sandwich…and….a steak sandwich. No worries, order whatever you want, I’m charging it all to the Underhills. Want the number?

Good Luck out there,

Madame HR

Don’t forget to send your questions! You can leave them in the comments, or email them to askHorroR@gmail.com