I didn’t say it was vacation. I said that my employer allows us to use our vacation time (called “annual leave” but that term is meaningless to many people)-in order to be paid while on FMLA leave. Maybe that part could have been clearer. If you run out of paid time, you are unpaid, as FMLA leave is not required to be paid.
If you are using vacation time, it is not FMLA leave and your job is not protected. You can be replaced. Yes, you can use your vacation time for medical situations. It is not FMLA leave, though.
Employers can require or allow paid leave for FMLA. From the Department of Labor: “Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer’s policies governing the use of such leave.”
https://www.dol.gov/whd/regs/compliance/1421.htm
Section on “Substitution of Paid Leave”
My employer (a state govt.), has options for ‘FMLA-Sick’ and ‘FMLA-Annual’ on the time entry forms as well as unpaid FMLA. I have used all of those at different times.
It is possibly relevant whether the OP’s daughter was on FMLA or not, but even if she was, it isn’t like they eliminated her job while she was out, or fired her the day she came back. She’d have to prove that she was let go because of the time off. I agree with many that this is a generous offer and that legal action is probably not worth it.
And as far as learning from this experience, it is certainly good for her to know that FMLA may be an option in future situations where an illness requires time off work.
Based on initial post, it sounds like OPs daughter was on a 2 week short term disability leave. I agree it would be difficult to prove that she was let go due her disability .
I think we are talking about different things here, and a I don’t know this employer’s policies. How something is handled for accounting and pay purposes can be different from what you have requested in the way of medical leave. There are a lot of variables. It’s complicated and ADA leave as an accommodation is even more confusing.
I have a weekly meeting to address individuals out on leave at our very large company and how they will be handled.
I know that our system handles it differently in terms of payroll codes (I used to support payroll), and it probably does have different accounting codes as well. But the employee is still using sick/vacation time in every way that matters to the employee (they use a week of sick time, they then have a week less to use in the future). There’s no using up that time before going on FMLA, if you have an FMLA-qualifying situation.
In a state like Massachusetts, there’s almost certain to be applicable state or local law in addition to federal law. Only a local employment attorney can fill you in on all your options.
I guess the reason to use up that time is to get paid. FMLA is unpaid unless, like you said, you use sick days or vacation.
Just to clarify, D2 did all the correct things to get her two week disability. She had a doctor’s orders, went through HR, etc. So no, she did not just call in sick. Not sure if and how she was paid. Never heard her mention FMLA. I will have to ask her next time I speak with her.
She and her current b/f are visiting D1 ( her sister) and her significant other in NYC this weekend. This was a planned trip long before what transpired this past week. So glad it was not cancelled.
Regardless…of how or if…or whatever…this is still a good separation package for her.
Review it carefully…but #1 sounds like a very generous offer!
A friend has been working for IBM for probably 30 years. He said if they lay him off they will give him …wait for it… A month severance .
^^^ And they don’t have to give a month severence. They don’t have to give anything.
I agree with @1or2musicians that employers can require an employee on FMLA leave to use up all vacation and medical leave to prevent extended ‘stacked’ leave. The employer doesn’t have to, but can require the employee to take all accrued leave within the 3 month FMLA time off. An employer can also count any leave already taken for the illness as part of the FMLA time if employee goes on sick leave and the converts to FMLA time. (You are out for 2 weeks, then apply for FMLA time, the two weeks counts in the total time allowed) This prevents an employee from ‘stacking’ and taking a two week vacation, and then two weeks of sick time, then 3 months of family leave. Up to the employer on whether to allow part time work to stretch out leave too. Some employers let the employees take the entire FMLA time unpaid, others require using paid leave first, then unpaid. If the employee has shorterm disability coverage, that a require all leave to be used first also.
I agree with other posters that the severance offered is fine in view of the length of her employment. But the question still remains whether the firing itself was justified or legal. More facts would be needed to be able to discuss that issue.
Does the employer know the real reason why the D was having the depression? If they only knew she took 2 weeks off due to depression, they may not want to have to deal it or have problem with the D later, and that’s why they are offering her a generous severance to avoid future problem. If that’s the case, I wonder if it would be worth it for the D to have a discussion with her manager and HR to let them know it was due to side affect of taking the new birth control, and ask them to give her another chance for few months before they make the final decision (assuming she still likes the job). Of course, if they have all information and still wants the D to leave, then it is best to take the offer.
Wasn’t Option #2 sort of what @oldfort is suggesting? A couple of more months of employment…to,see if it can work out…but if she does this…she loses all the benefits offered in Option 1.
Ugh. I, and she, WA s so happy when she got this job. It paid well, had good fringes and had job growth potential. She seemed to like it and it was in a beautiful location and she was networking, etc.
She was able to move, more expensive, to a much better location from where she used to live, She gets along very well with her roomates. All was good.
And then it isn’t. I can only hope and pray she can find something equally as good or better.
Was
She will find a new job! She will!
Were. Ugh, I have a hard tim editing on my iPad.