Maternity Leave & Short Term Disability

[NJlauren]

Just wanted to say I really feel for her. I'm more disappointed that they company isn't working with her (at least from your explanation). Companies need to work with people hugs to her and you because you seem to really care about her and this awful situation.

 

[Happy Snowman]

Ideally, she'd like to take the 12 weeks she'd *normally* be entitled to after the birth of her baby. She'd even settle for the 6 weeks. But our employer has said since she's already used up 9 weeks of STD and FMLA (they run them concurrently), then she's only entitled to 3 more weeks. It's a rolling 12 month calendar year.



It unfortunately doesn't reset, at least not in NY. They do a rolling 12 month calendar year, so it wouldn't rest for her until this November, when it's been a year since she went out due to her morning sickness.

Definitely an unfortunate situation that I think is a combination of our employer's tough policies coupled with NY laws. She did inquire about unpaid leave after her remaining 3 weeks is up, she has no problem with not getting paid. But our employer won't allow unpaid leave, which is why they are telling her she needs to resign and then reapply. Her direct manager tells her they will do everything they can to hold her position to make sure she can come back, but of course there are no guarantees.

Is she a good employee? I wonder if there are other factors involved.

It's odd that the company short term disability doesn't kick into long term disability with a bedrest/birth situation. Usually those plans, if offered by the company, are set up to work together.

 

[ColoradoDisneyFreaks]

Your friend needs to consult a labor attorney to determine what the actual legal policy of the state is, and whether or not her employer is interpreting the policy correctly. Then she can either know that the company is correct, or can determine if she cares enough about her job that she wants to fight it.

 

[Happy Snowman]

I would also call the plan administrator/STD insurance company for the STD. She has 2 separate leaves if she has been back to work now since she was on bedrest...the bedrest is one and the birth is another. Get them to clarify how the leave works in this situation. The FMLA is a "separate" issue" but if she is eligible for STD again, she should be able to take whatever the company defined leave is--4 weeks, 6 weeks or whatever.

Take pregnancy out of the question....

Say she had a heart attack in November and went on STD for 8 weeks. Then say in May she had cancer and was out for 6 weeks on STD for treatment...would they expect her to resign and re-apply then?

 

[ColoradoDisneyFreaks]

And she needs to remember, the company HR department isn't there to help her, they're there to protect the company, so of course they're going to interpret the policy in the way that best benefits the company, but HR departments have been wrong before, and they'll be wrong again, so it's worth checking with a neutral party.

 

[Happy Snowman]

Your friend needs to consult a labor attorney to determine what the actual legal policy of the state is, and whether or not her employer is interpreting the policy correctly. Then she can either know that the company is correct, or can determine if she cares enough about her job that she wants to fight it.

...or just your state labor board without the fees of going to an attorney. If the state labor board says they are doing something wrong and won't change, that would be the time to consult an attorney.

 

[Gracie09]

Is she a good employee? I wonder if there are other factors involved.

It's odd that the company short term disability doesn't kick into long term disability with a bedrest/birth situation. Usually those plans, if offered by the company, are set up to work together.

Long term disability starts at 6 months.

 

[Happy Snowman]

Long term disability starts at 6 months.

Not always....every employer picks their own plans....my LTD starts after 12 weeks....

 

[jrmasm]

http://www.dol.gov/whd/fmla/

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to:

• Twelve workweeks of leave in a 12-month period for:
  • the birth of a child and to care for the newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job;
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty;” or

• Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (military caregiver leave).

Looks like the employer only needs to grant 12 weeks under FMLA.

 

[Happy Snowman]

..and...I'm not too sure I'd WANT to go back to work for a company that is this rigid....

 

[nkereina]

All great points, thanks for the replies. To my knowledge, she's not an employee with issues. In fact, our managers have been fighting for her. Several co-workers have told her to talk to an attorney, but she doesn't want to rock the boat and potentially jeopardize her chances of being able to come back.

 

[shoney]

In my mind the question is
Can Jan be fired or forced to reapply for a job while she is on NYS short term disability?


We know she used up her FMLA for the 12 month rolling period.

At week 3, she will have used up the short term disability insurance provided by her employer.

She is still entitled to NYS disability for either an additional 3 weeks for traditional birth or 5 weeks for a c-section.
If her employer can not fire her during that period, then she would be required to return to work at either the 6 or 8 week mark instead of 3.


Either way she does need to make some phone calls.

 

[nkereina]

In my mind the question is
Can Jan be fired or forced to reapply for a job while she is on NYS short term disability?


We know she used up her FMLA for the 12 month rolling period.

At week 3, she will have used up the short term disability insurance provided by her employer.

She is still entitled to NYS disability for either an additional 3 weeks for traditional birth or 5 weeks for a c-section.
If her employer can not fire her during that period, then she would be required to return to work at either the 6 or 8 week mark instead of 3.


Either way she does need to make some phone calls.

Good question. The way I understand it is that NYS short term merely pays you, while FMLA requires your employer to hold your job for up to 12 weeks. She will have exhausted FMLA, so after that's done, our employer is under no obligation to hold her job. Hopefully she can get some clarification aroud this from the Short Term Disability folks.

 

[undertheradar]

The question is if she requires these additional weeks, or does she desire these additional weeks. My wife gave birth to all 3 of our kids and the longest time she was out was 4 weeks with our first. With our other 2, she was out no more than 3 weeks. There is a big difference in requiring the additional time, as opposed to desiring the additional time. As for paternity leave, I just don't get that one unless there are multiple births or extenuating circumstances.

 

[kamik86]

The question is if she requires these additional weeks, or does she desire these additional weeks. My wife gave birth to all 3 of our kids and the longest time she was out was 4 weeks with our first. With our other 2, she was out no more than 3 weeks. There is a big difference in requiring the additional time, as opposed to desiring the additional time. As for paternity leave, I just don't get that one unless there are multiple births or extenuating circumstances.

With paternity leave most guys in my office just take vacation time. The longest any of them took was 3 weeks and that is because he always takes a week or two off at Christmas and his child was born in mid Dec. Our office is extremely quiet until the second week of Jan anyway so there was no reason not to.

I could definitely see taking some time off, time to help the new mom and bond with the baby. However as you said more of a want then an absolute need.

 

[CPT Tripss]

I'm sorry you guys in the US have to go through this. What a lot to navigate! Hope the OP's friend can catch a break.

I went back to work after the birth of my daughter at 3 weeks. It's doable. And I exclusively breast fed (had to buy a good pump).
My DH had lost his employment at the end of my pregnancy when the company he worked for was bought and moved to another state. I had to go back to work in order for us to have money coming in besides his unemployement. Luckily they let me work part time for the first couple weeks. Do you think she has that option? Could her DH take paternity leave and stay home with the baby once she's back at work?

I know it's not ideal. But not all moms and dads have the 'luxury' of being able to spend 12 weeks at home with their baby. You do what you have to do to keep your job, get your paycheck, and take care of your family.

And to think, we claim to be pro-family

 

[StitchesGr8Fan]

It sounds like the short-term disability pay isn't the issue, FMLA is. I believe the company is interpreting the policy correctly that they only have to hold her job for 12 weeks. The policy is 12 weeks total, not 12 weeks per issue.

 

[nkereina]

The question is if she requires these additional weeks, or does she desire these additional weeks. My wife gave birth to all 3 of our kids and the longest time she was out was 4 weeks with our first. With our other 2, she was out no more than 3 weeks. There is a big difference in requiring the additional time, as opposed to desiring the additional time. As for paternity leave, I just don't get that one unless there are multiple births or extenuating circumstances.

I believe her daycare won't even take the baby until he or she is 6 weeks old. So at a minimum, she'd require an additional 3 weeks beyond what she has left before she could come back to work. But, being a new mom, I'm sure she really wants to be home as long as possible. It's a big adjustment. I feel for her knowing that if she hadn't gotten sick early on, she'd have a full 12 weeks home with her new baby, with no questions asked.

 

[DopeyDame]

Say she had a heart attack in November and went on STD for 8 weeks. Then say in May she had cancer and was out for 6 weeks on STD for treatment...would they expect her to resign and re-apply then?

Yup - they absolutely could expect her to resign and reapply in that scenario. The employer is right in that FMLA covers 12 weeks of time off in a rotating 12 month period. And it doesn't matter whether those weeks are related to the same event, different events, pregnancy, illness, immediate family member illness, or whatever. Any covered FMLA absence accrues to 12 weeks of time off in a 12 month period.

Short Term Disability is how she gets paid, but it's totally irrelevant to the FMLA guarantee of not getting fired.

It absolutely sucks for her, and it's a shame she didn't understand what she was giving up earlier in her pregnancy so she could make more informed decisions about time off at that point (and have time to save money as needed)

All that said, one would hope if she's a valuable employee that SOMEONE at the company would figure out a way to let her take at least a few more weeks off and still come back.

 

[smiths02]

If I were her, I would contact the labor board or an attorney just to get advice. Even if they only have to give 12 weeks.

I think another problem could be unemployment.
I mean it could all go swimmingly. She resigns, then 6 weeks after the baby is born she re-applies and gets right back to her job.
OR she could reapply, and they don't hire her. Then, they deny unemployment benefits. If I were your co-worker, I would want to be careful to what it was being called, quitting, resigning, termination, etc. because that will matter for re-hire, for jobs down the road, and for unemployment benefits