Paternity/Sick Leave/FMLA in NV

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Paternity/Sick Leave/FMLA in NV

Post  TNV on Mon Feb 02, 2009 4:52 pm

Background:
* employed full-time for with same company for 20+ years (I have a SIGNIFICANT amount of accrued sick time)
* company has more than 50 employees
* in the state of Nevada
* not-married (marriage is not an option at this time)
* girlfriend pregnant and due to give birth in a couple of months

Information found:
Qualifying Reason for FMLA includes
* For birth of the employee's child and to care for the newborn child after birth, or placement of a child with the employee for adoption or foster care and to care for the child.

Pay Status
* The employee may elect to use accrued annual, sick or personal leave, in lieu of unpaid leave time for any FMLA-qualifying purpose.

Question:
So, if the birth of my child is a "Qualifying Reason for FMLA," can I not elect to use sick leave in lieu of unpaid leave?

Females in my department are allowed to use sick/vacation time following the birth of their children, as part of their FMLA. I know I am not the one giving birth. You don't need to point that out. I also know that I would like to be there for my girlfriend and our new baby for more than 3 days (which is the amount of time my company claims I can use for sick/paternity leave). Furthermore, I was told that I would not be approved for more than one week of vacation time.

I am really trying to figure out how I can stay home for at least six weeks after the birth of our child...utilizing my sick time for FMLA (or splitting the difference - using 3 weeks of my sick time and 3 weeks of my vacation time). Any suggestions?

TNV

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Re: Paternity/Sick Leave/FMLA in NV

Post  JoeC (McGruff) on Mon Feb 02, 2009 10:31 pm

Interesting post,first you don't have to tell me your a male and not delivering that goes without saying. You should be entitled to the same benefits as similarly situated female employees, what ever that is. The problem arises as this is your girlfriend,and not your wife she may not be considered a dependent under the employers benefit program that the female employees are falling under (assuming they are married when they deliver). Since the lost benefit is three weeks sick leave, (which is not lost just not qualifying under the employers plan) you just may not qualify, this hardly gives rise to court action given the cost associated with litigation.

Pay Status
* The employee may elect to use accrued annual, sick or personal leave, in lieu of unpaid leave time for any FMLA-qualifying purpose.

Thats only half right. The FMLA allows an employee to elect or the employer to substitute paid leave for unpaid unpaid FMLA leave. However it does have to be uniform, even though the girlfriend does not qualify as a dependent for the purpose of your sick leave benefits, the birth of your son qualifies for FMLA, so the problem is where does the benefit to the similarly situated females fall under your companies guideline's? Under a separate benefit detached from FMLA, or in addition to the FMLA. The employer could also make a good argument that sick leave for females is used because of the actual pregnancy, and delivery. Where the male employee could not claim this which would keep the male employee from using sick leave. I got a question are the married men entitled to use their sick leave as part of FMLA?
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Re: Paternity/Sick Leave/FMLA in NV

Post  TNV on Thu Feb 05, 2009 12:46 am

I am getting differing answers from the men in my dept. regarding taking sick leave after the birth of their children. Some have taken the 3 days as supposedly "allowed," but others who have challenged the short duration of leave and successfully taken more time off.

I'm confused about this statement . . . "The FMLA allows an employee to elect or the employer to substitute paid leave for unpaid unpaid FMLA leave." If FMLA allows me to ELECT to substitute paid leave for unpaid FMLA leave, can I not substitute sick leave for unpaid leave? If that is not an option, can I not substitute vacation time for unpaid leave? (I am being told I will only be approved for 1 week of vacation.)

Thanks for walking me through this.

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Re: Paternity/Sick Leave/FMLA in NV

Post  JoeC (McGruff) on Thu Feb 05, 2009 3:10 am

I'm confused about this statement . . . "The FMLA allows an employee to elect or the employer to substitute paid leave for unpaid unpaid FMLA leave." If FMLA allows me to ELECT to substitute paid leave for unpaid FMLA leave, can I not substitute sick leave for unpaid leave? If that is not an option, can I not substitute vacation time for unpaid leave?
Let me try to make this as simple as I can. The FMLA guarantees eligible employees up to 12 weeks of unpaid leave during a 1-year period (1) for the birth of a child, (2) for the placement of a child with the employee for adoption or foster care, (3) to care for a spouse, son, daughter, or parent with a serious health condition, and (4) for a serious health condition of the employee. In addition to a block of leave time, leave must be granted on either an intermittent or part-time basis when necessary.
During the 12-week period, the employer must maintain the employee’s group health coverage. Upon the timely return to work, the employee must be reinstated to his or her former position or an equivalent. Pursuant to congressional directive, the Department of Labor has issued regulations implementing the FMLA. 29 U.S.C. § 2654; 29 C.F.R. §§ 825.100 et seq. The regulations require that employers have written policies regarding the use of FMLA leave, including how the right to take leave can be exercised. You are misinterpeting Section 2612 of the FMLA which simply tells employers what they may do—require substitution—not what they must do. 29 U.S.C. § 2612 is not a prohibition or a requirement. All it does is make clear that substitution is not forbidden.

Now there are restrictions on the general principle that the employer may require substitution. Title 29 U.S.C.§ 2652(a) sets out such a restriction. That section provides that nothing in the FMLA shall be construed to diminish the obligation of an employer to comply with any collective bargaining agreement or any employment benefit program or plan that provides greater family or medical leave rights to employees than the rights established under this Act . . So you have to look at the employers written policy on FML, if substitution is permitted then you have an argument, however if the employees are using the time off under a different policy separate from FMLA you may not qualify. Does this make sence? You have to study the whole act, you are getiing hung up on a right that may not exist.
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Re: Paternity/Sick Leave/FMLA in NV

Post  Onyx08 on Sat Feb 07, 2009 2:43 am

You aren't sick, so why do you think YOU are eligible for sick leave? That makes no sense to me.
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Re: Paternity/Sick Leave/FMLA in NV

Post  bears00 on Mon Mar 30, 2009 12:31 am

As far as you being able to be off, you CAN BE off for 12 weeks unpaid, no question.

If you want to be paid for it, that is a little stickier. You may use your vacation; however, what are the "normal" restrictions on the use of your sick time?
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