Hello, I have a few questions. I have worked as a contract employee for 11 years. Of course the contracts change about every 4 years and the Contract company I work for changes as well. My question is this. I am having a surgery and need to be off work for about 3 weeks. Do I have to take FMLA leave? If so, do I have to use my vacation? The HR department told me that I am eligible for Short Term Disability, but my Boss insists I need to use FMLA. Now I wouldn't have a big problem with that, if he weren’t trying to get rid of me. Our handbook says that if you come back from FMLA they do not have to give you your same job back? Can he bring me back pushing a broom?
- FML eh?
Dear FML eh,
Alotta wishes you well on your surgery and hopes that the surgery you will be having is to remove that hemorrhoid of a boss.
Despite what your boss says, you do not have to take FMLA leave if your HR department tells you that you are eligible for Short Term Disability. In fact, your situation is a great example of what Short Term Disability is there for in the first place. The FMLA (Family Medical Leave Act), on the other hand, was put in place to safeguard workers who need to take longer-term medical or family leave such as pregnancy, adoption, serious illness, or care of a loved one.
But whether or not you use vacation days while on FMLA leave is the prerogative of your employer. According to the U.S. Department of Labor:
The law permits an employee to elect, or the employer to require the employee, to use accrued paid leave, such as vacation or sick leave, for some or all of the FMLA leave period. When paid leave is substituted for unpaid FMLA leave, it may be counted against the 12-week FMLA leave entitlement if the employee is properly notified of the designation when the leave begins.
As for broom pushing — there'll be none of that! Despite what the handbook says, the law is clear. Should you take FMLA leave for your surgery, your company is required to restore to you your original job, or an equivalent job with equivalent pay, benefits, and other terms and conditions of employment.
Something to keep in mind: The FLMA requires that the employee be notified in writing that an absence is being designated as FMLA leave. So if that doesn't happen, you are not on FMLA leave.
For more information please see the U.S. Department of Labor's FMLA FAQ page: http://www.dol.gov/elaws/esa/fmla/faq.asp Or the FMLA Fact Sheet http://www.dol.gov/esa/regs/compliance/whd/whdfs28.htm
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