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There’s Nothing Funny about FMLA [HorroR Stories]

Dear Madame HR,

I recently found out I’m pregnant and I’m terrified to tell my boss. Last year my co-worker had a baby and when she came back they transferred her to a crappy job where she files all day. I heard a rumor that they fired someone else when she was on maternity leave. I can’t afford to lose my job, what do I do?

–Knocked up

Dear Knocked Up,

Well, first of all, congratulations on your forthcoming bundle of joy. I’m sure you are feeling enough stress, and probably a little nausea right now, and that’s before you even start to think about the quagmire that is leave law in this state/country. Leave laws are one of those things that most HR professionals still have to research every time they come up because they are an alphabet soup of confusion. I feel like it took me years to really understand, not only what all the acronyms stand for, but what they actually mean. And I feel like that’s happened because the females at my current company are a fertile lot. I have between four and eleven women on maternity leave at any given time so I feel like I can recite the laws in my sleep.

Leave laws are one of those funny things that exist purely to force employers to be compassionate. Employers hate shit like that. From the employer perspective, I get it, it’s hard to keep positions open while someone is gone for 1-3 months. On the other side though, why should you lose out just because you get sick/have a baby/need to care for a sick relative, etc. So I get it, really I do. Leave laws are important, okay. That being said they are also a big pain in the ass, for everyone involved. So, here is my attempt at making the inexplicable make sense. Enjoy!

I’m going to assume you live/work in California and you are eligible for protected leave. “Protected” means that when you return from leave the employer is required to reinstate you to your former position or to a position with equivalent pay, benefits, and other employment terms and conditions. And “eligible” means you have been at your employer for a year, worked more than 1,250 hours in that year, and your employer has more than 50 employees within a 75 mile radius.

Next, some definitions:

Family Medical Leave Act (“FMLA”)- Federal provision that provides 12 weeks of leave in a 12 month period for: employees own serious health condition including pregnancy and/or to care for a spouse, child, or parent with a serious health condition.

California has the California Family Rights Act (“CFRA”)- It’s a California provision that provides 12 weeks of leave in a 12 month period for: employee’s own serious health condition including pregnancy and/or to care for a spouse, domestic partner, child, or parent with a serious health condition, “bonding” (the birth of employee’s child or the placement of an adopted or foster child into the employee’s home).

Pregnancy Disability Leave (“PDL”)-Up to 4 months of leave for employee’s own pregnancy

Point 1: Leave laws are different than State Disability/ Paid Leave programs or private disability insurance.

Employees confuse this all the time. FMLA, PDL, CFRA have nothing to do with getting paid. State Disability Insurance (SDI) and Paid Family Leave (PFL) have nothing to do with job protection, or salary and benefits continuation.

If you want to get paid while you are on leave of absence and your employer does not have a private plan, or you do not have a supplemental plan, then you will apply to the state for SDI (if you are out due to your own medical condition) or PFL (if you are out to care for a family member). Applying for and receiving SDI or PFL in no way provides any job protection, it does not require that your employer give you the time off, nor is it guaranteeing any benefits, or any other perks you may receive on the job. All its saying is “Hey, you know all that money you’ve been deducting from my paycheck every month?  I want some of that back.” And when I say “some,” I mean some. Generally they will pay you 60% of your pre-disability weekly earnings.

Wacky Tip: Did you know that you can coordinate your sick/vacation/PTO time with disability payments? If, while you are on leave, you have enough PTO stored up to use 8 hours a day the whole time you are out, SDI or PFL won’t pay you a dime. However, you can use that PTO to fill in the “gap” from the 60% SDI/PFL pays and your normal weekly rate. This way, you use up less of your PTO balance while you are out. HR departments usually have a spreadsheet they can show you that breaks down how it works.

Point 2: In Leave policies, there is a difference between disability, family medical leave, and “baby bonding”

So all those acronyms I mention above have an added extra benefit, some of them run concurrently and some do not. What does this mean? Well, for example let’s say you are pregnant, which you are, so this shouldn’t be too hard. Your doctor will fill out a pretty little doctor’s note that says you are technically, what we call in the “biz,” disabled due to pregnancy. So, in HR Land (or as I like to refer to it: HorroRwood) this starts the clock on PDL and FMLA, not CFRA. Doctors usually say you are disabled due to pregnancy for six weeks postpartum. This ends the PDL clock and starts up the CFRA clock and continues the FMLA clock. So, in theory, you can take another 12 weeks of protected leave after your doctor has said you are no longer disabled due to pregnancy, hence the term “baby bonding.” Sounds better than CFRA (pronounced “Sif-RA”). I don’t know why California has CFRA and PDL when they are basically for the same thing but don’t run concurrent. The only difference is that PDL does not have a seniority requirement. So, for CFRA you have to be at your employers for a year to qualify, for PDL, you could walk in the door on your first day, announce you are pregnant, give them a doctor’s note and walk back out. Neat!

And, by the say, you receive SDI while you are disabled due to pregnancy, PFL once you hit that “baby bonding” time.

Lawyers love this concurrent/not-concurrent thing. I’ve sat in dozens of seminars where they’ve come up with entire power point presentations that show how an employee can take a year of protected leave (this usually involves pregnancy and your spouse getting injured in Afghanistan). Don’t ask me how, military leave freaks me the fuck out.

Wacky Tip: FMLA and CFRA don’t just protect your job (requiring that your employer reinstate you to the same position or a position equal in pay, benefits and other terms and conditions), but they also have to provide any perks you might have missed out on. These include: vesting for your 401k or other retirement plans, bonuses, etc. They have to provide you anything that you would have received if you hadn’t been on leave.

Wacky Tip #2: You can take FMLA and CFRA intermittently. So for example, you need to take every Tuesday off to take your mom to the hospital for cancer treatments. That counts! Talk to HR—they’ll hate you!

Wacky Tip #3: You don’t have to take all of your leave right after you give birth. You have up until a year after the birth to take FMLA or CFRA to care for your child. So, for example, you can take off the six weeks “disability” to give birth, come back to work for 2 months and then take off 12 weeks of CFRA. And they have to let you!

Wacky Tip #4: Read your Employee Handbook, there’s all sorts of crazy things that your employer is required to give you leave to do: voting, going to parent/teacher conferences or other school events, donating organs or bone marrow, testifying in court, being a victim of a crime or being related to a crime victim, receiving treatment and/or going to court for being a victim of domestic violence or sexual assault, being a volunteer emergency rescue worker, being in the Civil Air Patrol (what is that? I have no idea), learning how to read. Then there’s the military…let’s just leave that alone for now.

So I know, your head is spinning and your eyelids are drooping and you hate me and you never want to read a HorroR Stories post again. OK, I get it, I never want to write another leave of absence HorroR Stories post again. I hate managing leaves of absence, hate, hate, hate it. But someday I hope to take one, it’s a personal goal of mine, so I’m damn glad they are there.

Forget about the pay part—that is between you and your state-run program. Leave laws are there to protect your job and continue your benefits, two things you probably really need right now. And if your employer is playing funny money with FMLA then they are pretty brave because there are federal and state agencies that exist purely to make sure they don’t do that. So, does that mean they won’t? I’ve seen weirder things. I mean, I’ll admit that some managers, when their problem employees go out on leave, are like “KACHING! Time to get rid of Sally.” Hopefully that’s actually one of the reasons HR exists, so stuff like that doesn’t happen. But maybe they’ll try, and you’ll have to deal with the pain in the ass of having to file a claim with some state agency and go through that whole nightmare.

Even with all of that madness, don’t hide that baby bump anymore. I’d say you are probably better off communicating with your employer, helping them come up with a plan on how to cover your desk while you’re away. Also, keep in touch with them while you are out, send an email every once in a while, talk about how you’re excited to transition back in, send them baby pictures. Things like that go a long way. And most of all, have a healthy and happy little baby and forget about all these annoying acronyms until you’re ready for number two.

Good Luck out there,

Mme HR

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