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Bonding Leave

We have an employee that requested 12 weeks of bonding leave. He qualified for the bonding leave and we receive the completed WH-382 form. However, we now have knowledge that he is overseas on military assignment. The company in good faith issue him FMLA for bonding with his newborn. Do we have any recourse?

The federal Family and Medical Leave Act (FMLA) entitles covered, eligible employees to take up to 12 workweeks of unpaid, job protected leave in a 12 month period for specified family and medical reasons including to bond with a newborn or newly placed son or daughter. Since the employee was approved for bonding leave, it’s assumed it was a legitimate need at the time he applied for it.

The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the job restoration rights of individuals who leave employment positions to serve military duty. The employee must provide advanced written or verbal notice of the service unless such notice is impossible, unreasonable, or precluded by military necessity; and return to work or apply for reinstatement within a timely manner after the service is completed. An eligible employee must be restored to his initial job or, in some circumstances, a comparable job.

Though the employee was not forthcoming about his need for leave to serve in the military, the fact that you, as the employer, are aware that he is serving may be enough to assert his protections under USERRA. Additionally, it’s possible that providing notice was impossible to due to the nature of the service. Discussing the situation with the employee is needed before any actions can be taken.

The best advice is to attempt to communicate with the employee via any means you have available i.e. phone, mail, or e-mail. Assuming the employee is indeed on military duty he may not be able to respond; however, it’s worth an attempt and it’s possible a family member may receive the communication and contact you. In the communication, inform the employee that you have been made aware that he is on military duty, the proper notice has not been received, and, if he is on military duty, he is no longer considered to be on FMLA leave. Assert that he must contact you as soon as possible to discuss the situation.

It’s best not to make any judgments or employment actions until the situation is clear.

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This entry was posted on Tuesday, June 24th, 2014 at 6:57 pm and is filed under
Human Resources Management, Labor Laws.
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