Legal Question in Medical Leave in California

FMLA/Short Term Disability different or the same?

I was out on short term disability for a surgery from Jan. to March. I am now pregnant and will be out of work in August. My company is telling me that I have used up my FMLA due to my surgery and will not be eligable for FMLA after the birth of my child since I will not have worked the required 1250 hours since returning. I was salaried while having surgery and was under the impression that I was using State Disability Insurance, NOT FMLA. They state that you use both at the same time. Is this right? I was paid by the State and my company covered the remaining salary I wasn't getting from the State. I don't want to have to return to work after only 6 weeks, and then have to wait another two plus months to spend time with my child. Did they misinstruct me and have me file for both Disability Insurance AND FMLA when it should have only been one? HELP!!


Asked on 7/23/04, 7:50 pm

1 Answer from Attorneys
Alden Knisbacher knisbacher law offices

Re: FMLA/Short Term Disability different or the same?

It is the employer's responsibility to notify you that your leave is being counted as CFRA leave -- Their failure to do so may mean that you can receive another 12 weeks of leave, because the employer did not designate the leave as CFRA. The employer may also have to give you the leave depending on the language that it uses to describe the leave. . . CFRA entitles you to the 12 weeks in any 12 month period. The law also requires employers to notify employees of their rights to the leave. As part of this notification, the employer may choose to define the beginning pointof the 12 month period. If the employer does not do so, you are entitled to the definition that would be most beneficial to you -- it could be a rolling 12 month period of time. Also, if you require leave due to complications of childbirth -- or recovery from childbirth -- you can get another 12 weeks of leave under California's Pregnancy Disability Leave law. (This would require your doctor's medical opinion that you are eligible for the leave.)

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Answered on 7/26/04, 3:52 pm


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