questions & answers

Question: My husband is a state employee and while I gave birth to our son, he took FMLA for 5 weeks. When he returned to work he submitted our sons birth certificate and the HR representative told him we were denied because it had exceeded the 30 days to enroll him. Can they do this while on FMLA?

Answer: The FMLA does not protect all employees. Instead, it protects only covered employees. To be covered by the FMLA, you have to meet all of the three following requirements:
 •You work for a company that has 50 or more employees within 75 miles of your workplace; and,
 •You worked for your employer for at least one year before taking the FMLA leave; and
 •You worked at least 1,250 hours in that year (about 25 hours per week) (29 U.S.C. 2611(2)).

 If you are a "covered employee" under the FMLA, you can take up to 12 weeks of unpaid leave in any 12 month period for the following three reasons:
 •To recover from your own serious health condition that prevents you from performing the functions of your job
. •To care for a child, spouse, or parent with a serious health condition;
 •To give birth or adopt a child. Both mothers and fathers can take leave for the birth, adoption, and care of a new child (29 U.S.C. 2612(a)(1));
Covered Employees cannot be fired for taking the protected FMLA leave. Moreover, your employer cannot count your absences under a disciplinary policy if the reason for missing work was covered by the FMLA. (29 CFR 825.220(c)). FMLA leave is unpaid leave, but it can be combined with paid leave provided by the employer, such as vacation or sick pay. (29 CFR 825.207). For more information on FMLA, go to our website http://www.azlawhelp.org/articles_info.cfm?mc=2&sc=13&articleid=48 for the complete article. You may also want to check out the Dept. of Labor's website on FMLA - http://www.dol.gov/compliance/guide/fmla.htm