i have been on short term disability since july 15th 2011 and i am supposed to return to my job by october 5th. If i do not return i will be terminated. But on september 26th i have to go in for surgey and will be out 4 to 6 weeks. I have not recieved papers for fmla or filled any out. I Have not been told that i needed to. They said it runs together. But the handbook does not state that. So do i have a case for FMLA since i have not sighned any papers for FMLA?

3 answers  |  asked Sep 20, 2011 4:35 PM [EST]  |  applies to Illinois

Answers (3)

Ron Schwartz
From the FMLA regulations:

d) Retroactive designation . If an employer does not designate leave as required by §825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by §825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.

Ron Schwartz

posted by Ron Schwartz  |  Sep 21, 2011 3:14 PM [EST]
John Otto
The answer to your question is complicated. In general, if your condition qualifies you for FMLA, then the employer can put you on FMLA, whether you request it or not. However, the employer must notify you within five days that it has placed you on FMLA. If you did not get that notice and are only finding out now that you're applying for FMLA because of the September 26 surgery, the employer very well might be violating the Act. Since your operation is Monday, to protect yourself you should immediately request FMLA and provide the supporting documentation, even if the employer says you won't get it past October 5. And, as soon as possible, you should see a lawyer who can help you protect your rights.

posted by John Otto  |  Sep 21, 2011 08:12 AM [EST]
Alejandro Caffarelli
If you are interested in scheduling an initial over the phone screening, please do not hesitate to contact me directly to arrange a date and time for a screening.

If you have any questions, or if you would like to schedule a consultation, I may be reached at (312) 540-1230

posted by Alejandro Caffarelli  |  Sep 21, 2011 06:45 AM [EST]

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