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Should I have qualified for FMLA

Discussion in 'Medical Leave & Disability' started by Nabbers, Jun 8, 2020.

  1. Nabbers

    Nabbers Law Topic Starter New Member

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    About a month ago, I was in the hospital for 24 hours and then had a few more off due to a life threatening condition. It was an emergency situation where I went to my primary physician feeling ill and after a few tests he had me in a hospital bed within a couple hours. I have more testing coming up this month for the issue and a surgery scheduled for next month.

    My employer is a more complicated situation - I have been at the same place for over ten years but the location I am at was recently sold. They told us all that we were essentially terminated from one company and hired on at the new one, but they transferred over our vacation hours and let us keep our years with the company.

    Our attendance is just handled by a call center, where I called in every day, told them how many days I was out for and that I had been in the hospital. They always ask, is this related to FMLA or a short term disability leave? I said I don't know if I qualify for FMLA since we have been bought and I haven't been with the new company for more than a year. They just transferred me over to our short term disability company to fill out a claim for that, which was of course denied, being only for three days. When I returned, I gave my on-site HR person a copy of my doctor's note stating that I had been in the hospital and when I was allowed to work again. Then I had a sit down with the HR person and let them know the nature of my illness and that I was expecting surgery. I never heard any more about it, and was told for my surgery to just file for short term disability. Never heard anything at all about FMLA or what my rights were regarding it.

    The other day I learned about something in FMLA law called a "successor in interest." (29 CFR § 825.107) I'm thinking that since my job is entirely the same and the company owning the place is all that has changed, this situation is covered and I should still have FMLA benefits. But it's been a month now, and I'm not sure if I lose any right to FMLA coverage since I didn't personally request it, and they never sent me any information about my rights to coverage or any sort of medical certification.

    My questions are, should I still qualify for FMLA, should this have qualified for FMLA, and what next steps should I take?

    Thank you.
     
  2. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    They don't seem to be firing you so FMLA isn't really in play here. FMLA is unpaid if you are on it or not you would still need to file for STD if you want to get paid.
     
    army judge and hrforme like this.
  3. Nabbers

    Nabbers Law Topic Starter New Member

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    Well, actually the main reason I bring it up is because we have a point based attendance policy and I want to know that I'm protected in the future from pointing out for this and any future absences related to the surgery. I have plenty of savings to cover the missed pay. The points are few and last for a year, and the recovery process may not be easy.
     
  4. hrforme

    hrforme Active Member

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    ask HR specifically for FMLA paperwork and they have 5 days to get it to you. On that paperwork it should state whether you are eligible (hours worked, hire date, location, etc). AND let them know that you expect to need future time off for this reason. It could be if you are right on the 3 days of absences that it is a gray area.....

    Then you will know. If they say you are not, ask about the successor in interest that you mentioned.

    So far, you haven't lost anything until there is an adverse action, but you want to document your conversations and written requests. (they can possibly backdate your prior absences to be covered)
     
  5. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    You are going to have to ask your HR department how many, if any, attendance points this will cause you. We have no way of knowing that.
     
    army judge likes this.

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