Can an employer deny FMLA for Military Exigency even though the employee hasn't received FMLA P/W?

I am deploying next month and my husband indicated to his workplace's HR department that he would like to apply for FMLA due to qualified military exigency. When he first spoke to HR, he was told that they didn't know what that was. When he called back, he was told they would be denying his request even though he never filled out any paperwork or received any notice of eligibility etc. The third time he contacted them, he was given the number to a third-party agency through which to file his FMLA claim but was told by his actual employer that even if the third-party approves his FMLA request, they can deny it. Additionally, he was told that if he chooses to keep pursuing it, he will be fired for attendance. He still has not received any paperwork from either the employer or the third-party, even though by law they have 5 business days upon first finding out of the need for FMLA, to get out the forms. How can you deny someone FMLA when you haven't even assessed whether they are eligible (he is, has been with the employer over 12 months and worked over 1250 hours), and whether what they are requesting falls in line with being covered under FMLA? They haven't assessed whether he's asking for intermittent or consecutive leave or how often he needs to be out, etc. We are now supposed to attend a conference in Boston with the military for which the government has already paid our travel this weekend and they keep giving him the run around about whether or not it will count against his attendance. The conference was originally scheduled for last weekend but the manager never changed it even though my husband notified them of the change, then forced my husband to use his PTO for the time originally scheduled even though he didn't need to be out that weekend anymore and was refusing to allow him to use PTO this weekend to cover his absence. Is this legal???

2 answers  |  asked Sep 8, 2015 1:59 PM [EST]  |  applies to Florida

Answers (2)

Phyllis Towzey
It appears that your husband's employer is not educated about the FMLA, particularly the newer provision for military exigency leave.

I recommend that as a first step your husband provide his employer with a copy of the Department of Labor (DOL) fact sheet on Military Exigency Leave, which is available here:

http://www.dol.gov/whd/regs/compliance/whdfs28mc.pdf

If they still are not cooperating, then you can seek assistance from the Wage and Hour division at the phone number on the fact sheet.

Another option is to hire an employment attorney to send a letter to the employer advising them of your husband's FMLA rights, and warning them of the consequences if they refuse leave, retaliate against your husband, or otherwise violate the FMLA. However, this can be expensive for you - getting an attorney to deal with this would probably cost $500 to $750. That's why I think that, as a practical matter, you should try the two other options I mentioned above first. Of course, if they do take adverse employment action as threatened, then it's definitely time to get a lawyer involved, and your lawyer can demand that the company reimburse you for your attorney's fees.

Thank you to you and your husband for your service - I'm sorry to hear his employer has been so reluctant to provide the leave he is clearly entitled to.

posted by Phyllis Towzey  |  Sep 8, 2015 3:26 PM [EST]
Archibald Thomas
The FMLA prevents interference with one's rights under the FMLA or retaliation for asserting those rights. If FMLA is denied by the third party administrator or if the harassment continues, you may want to consult a lawyer to determine what, if any, remedies may be available to your husband. The FMLA does permit an employer to require that PTO be taken, if available, while on FMLA leave.

posted by Archibald Thomas  |  Sep 8, 2015 2:22 PM [EST]

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