Legal Question in Medical Leave in Maryland
Under 12 months of employment.
I am going to be having a baby on Friday by C-section. My husband was planning on taking 3 weeks off without pay to help take care of the baby and me since I will be having the surgery. He informed his direct managers verbally several weeks ago when we found out the surgery date, however, he did not tell the managers supervisor and he did not put anything in writing. No one ever told him he would need to talk to anyone else or do anything else. On Wednesday afternoon, he was told that he would not be allowed to take any time off since he has not been with the company for 12 months. He is about 3 weeks shy of this milestone. They also told him that since his request was less than 30 days in advance and not in writing, it was being denied. The company representative even told him that he would not be able to miss work on Friday for the birth of his son or he would be ''non-compliant''. My question is could my husband start to use his FMLA benefits when he reaches the 12 month employment mark? Does the start of FMLA have to coincide with the birth, or can it start when the baby is 3 weeks old and my husband has been with the company for 12 months?
1 Answer from Attorneys
Re: Under 12 months of employment.
First, congratulations. I hope your baby has a long, happy, healthy life. (And try not to let the company's stupidity interfere with what should be a joyous time.)
Onto your questions. Assuming the employer has 50 or more employees and is subject to the FMLA, then your husband is entitled to use the leave once he has 12 months of employment. Note that the employment need not be consecutive. If he had 4 months with the company in 1998 and 8 months in 2002, for example, that is enough.
The leave need not coincide with the birth. Your husband may use the leave to care for the newborn, regardless of whether the baby is sick or not, anytime during your baby's first year.
As for notice, the 30 day requirement has several caveats and your husband might be able to make an argument against it if necessary.
For example, if you did not have the c-section scheduled such that 30 day notice could be given, then you need only give as much as is practicable.
Second, if there is no notice posted by the employer explaining the notice requirement, then they can not hold employees to it.
Third, if vacation is used to cover the start of FMLA leave, then you only have to comply with vacation notice requirements, not FMLA notice requirements.)
In this case, though, it is best for your husband to send written notice now (email or otherwise, and keep a copy) to the appropriate people (supervisors, HR, etc.) that he will be taking leave to be with the baby starting immediately upon his eligibility (or whatever date the two of you choose, once he is eligible).
Also, if he wants to pick a fight, he can ask whether anyone else has been allowed maternity/paternity or other unpaid leave although not covered by FMLA. If so, he may have a discrimination claim. But that is not the best approach. No need to jeopardize his position with the company.
Last, in terms of missing work on Friday, your husband should use vacation if he has it, or just seek permission from his direct supervisor to be out for the day. It is patently ridiculous for the company to be so hard-nosed here, but the best approach is to play by the rules so that the work situation does not worsen.
Please feel free to call (or have your husband call) for a free consultation if you want to review the matter or need help tomorrow regarding the Friday leave. Tonight is fine, and I should be in all day Thursday.
Best of luck!
Jeff Sheldon
Jeffrey L. Sheldon, Esquire
The Sheldon Law Firm
6932 Mayfair Road
Laurel, MD 20707
301.604.2497
fax: 301.776.3954
http://www.SheldonLawFirm.com
Disclaimer: This posting does not and is not intended to constitute legal advice. It is not confidential, nor is it privileged, and it does not create an attorney-client relationship. Please consult with an attorney for advice specific to the facts of your case.
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