Human Resource Blog

Medical leave of Absense

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Hello..I seem to have a streak of bad luck. In November I was diagnosed with a herniated disc in my neck. I had surgery and returned to work under the 12 week FMLA  law. On May 3rd I fell and broke my ankle in 2 places. I had surgery and won’t be able to return to work for another 4 weeks at least. My problem is my employer granted the time off but will not hold my position for me. I will have to return to work in a different position with less pay. They posted my job on Monday. My question is this: under my first leave of absense they held the policy that stated 12 weeks in a year and while I was on leave they changed the policy to a rolling 12 week period. I have been trying to find out when the rolling 12 weeks start and I can’t seem to get an answer directly. They are checking into it and say they will get back to me. They tell me they don’t have to grandfather the policies. That the policy can change at any time even during a leave. Is this correct? And is there anything I can do to return to my original position?

An employer is free to change the way that they tabulate FMLA leave. However, the change cannot affect anyone who is already on FMLA. Suppose you went on FMLA for back surgery on November 1. On November 12, the employer changed the way they count FMLA time. They would have to apply the old standard to your leave, until you returned to work. However, once you return to work, the new standard applies to any additional FMLA that you take.

Generally the rolling 12-month period starts on the first day of requested leave and counts FMLA time take backwards one year. Suppose Jenny takes 4 weeks of FMLA beginning June 1, 2007 and returning June 29, 2007. On March 1, 2008 she requests FMLA again. She would be entitled to 8 weeks, because she has already used 4 weeks in the past 12 months. However, if Jenny requested FMLA leave on July 15, 2008, she would be entitled to 12 weeks.  That’s because she hasn’t used any FMLA between July 15, 2007 and July 15, 2008.

It must be noted that this employer is being extremely generous by giving you any job when you return, even if it is at a lower rate of pay. Most employers would simply terminate you when your unpaid leave reached 12 weeks and 1 day.