»

[08GXP]

Jurisdiction/Place:

I have been on intermittent FMLA (approved by my employer and certified by my treating physician) for the past three years.

I work my usual hours most of the time (I am salaried, exempt), but due to a chronic failed back syndrome post-operative x 2, there are days on which I cannot walk or am in too much pain to work.

My last certification date was for the 12 months beginning 7/18/08.

I used approx. 1 week of intermittent leave time (non-consecutive days), whereupon I fell ill with a lung problem on 3/9/09.

I specifically asked my HR representative if I needed to re-certify for the new serious health condition (I was hospitalized and out of work for 11 weeks), and returned to full, unrestricted duty on 6/2/09.

The unusual thing here is that my intermittent leave certification began 7/18/08, and when I went out on consecutive day leave for the lung problem, I was told that I did *not* need another certification, that my employer was "converting" my intermittent to full-time FMLA.

I thought that unusual, but my return to work was unremarkable, and as my back problems have continued, I just (last week) submitted re-certification for intermittent FMLA (physician certification).

Now, the twist is that my employer has *DENIED* my FMLA, based on their assertion that I had used 12 weeks of leave beginning 3/9/09, ending 6/2/09.

I was told verbally by my employer (HR) during my absence (on/about 4/20/09) that my previous intermittent leave took up 1 week of my 12 weeks, so I had 11 weeks to use, ending 5/22/09.

My manager at my branch office told me it was okay to take off through 6/2/09, even though I was not covered by FMLA for the remaining time between 5/23/09 and 6/1/09.

So...my original certification / approval date was 7/18/08 and 12 months has lapsed since that date. My HR Dep't "Converted" my leave from intermittent to consecutive (Leave of absence) on 3/9/09, without requiring medical certification for the condition which kept me out of work.

Now, they are trying to tell me that I am not eligible for reinstatement of intermittent FMLA until 3/10/2010 because I "converted" ??

My thinking is that a 12 month period elapsed between 7/18/08 and 7/18/09, and my re-certification for intermittent FMLA should be approved. I feel my employer has arbitrarily moved the FMLA approval date to 3/9/09 for it's own benefit and to potentially put my job at risk if I need to take more time off this year due to my back condition.

I hope that is clear enough. Basically, the intervening condition (lungs) was entirely within the 12 months from the original certification/approval date, but my employer is attempting to play games with the dates.

The denial letter stated they denied my FMLA due to their interpretation that FMLA is considered to have been exhausted if 12 weeks are used during ANY 12 month period. The employer is attempting to tell me that another 12 month period began when I went out ill with my pulmonary illness...I think that is wrong, especially given they did not require re-certification from a new physician, and the original certification (only certification) from a physician began 7/18/08.

Please advise as to your thoughts on whether my employer is within their rights to deny my new FMLA application.

Thank You.

[cbg]

There are a number of different "12 month periods" that an employer is legally allowed to use. Which one does your employer use?

You get 12 weeks per 12 month period, not 12 weeks per condition. I'm having trouble following your time line, but regardless of certification or not, IF you have used 12 weeks in the 12 month period used by your employer, they may legally deny FMLA. Or any other leave.

[theretoo]

Originally Posted by 08GXP

I have been on intermittent FMLA (approved by my employer and certified by my treating physician) for the past three years.

I work my usual hours most of the time (I am salaried, exempt), but due to a chronic failed back syndrome post-operative x 2, there are days on which I cannot walk or am in too much pain to work.

My last certification date was for the 12 months beginning 7/18/08.

I used approx. 1 week of intermittent leave time (non-consecutive days), whereupon I fell ill with a lung problem on 3/9/09.

I specifically asked my HR representative if I needed to re-certify for the new serious health condition (I was hospitalized and out of work for 11 weeks), and returned to full, unrestricted duty on 6/2/09.

The unusual thing here is that my intermittent leave certification began 7/18/08, and when I went out on consecutive day leave for the lung problem, I was told that I did *not* need another certification, that my employer was "converting" my intermittent to full-time FMLA.

I thought that unusual, but my return to work was unremarkable, and as my back problems have continued, I just (last week) submitted re-certification for intermittent FMLA (physician certification).

Now, the twist is that my employer has *DENIED* my FMLA, based on their assertion that I had used 12 weeks of leave beginning 3/9/09, ending 6/2/09.

I was told verbally by my employer (HR) during my absence (on/about 4/20/09) that my previous intermittent leave took up 1 week of my 12 weeks, so I had 11 weeks to use, ending 5/22/09.

My manager at my branch office told me it was okay to take off through 6/2/09, even though I was not covered by FMLA for the remaining time between 5/23/09 and 6/1/09.

So...my original certification / approval date was 7/18/08 and 12 months has lapsed since that date. My HR Dep't "Converted" my leave from intermittent to consecutive (Leave of absence) on 3/9/09, without requiring medical certification for the condition which kept me out of work.

Now, they are trying to tell me that I am not eligible for reinstatement of intermittent FMLA until 3/10/2010 because I "converted" ??

My thinking is that a 12 month period elapsed between 7/18/08 and 7/18/09, and my re-certification for intermittent FMLA should be approved. I feel my employer has arbitrarily moved the FMLA approval date to 3/9/09 for it's own benefit and to potentially put my job at risk if I need to take more time off this year due to my back condition.

I hope that is clear enough. Basically, the intervening condition (lungs) was entirely within the 12 months from the original certification/approval date, but my employer is attempting to play games with the dates.

The denial letter stated they denied my FMLA due to their interpretation that FMLA is considered to have been exhausted if 12 weeks are used during ANY 12 month period. The employer is attempting to tell me that another 12 month period began when I went out ill with my pulmonary illness...I think that is wrong, especially given they did not require re-certification from a new physician, and the original certification (only certification) from a physician began 7/18/08.

Please advise as to your thoughts on whether my employer is within their rights to deny my new FMLA application.

Thank You.

http://www.dol.gov/esa/whd/fmla/fina...litaryFAQs.pdf