Legal/ ethical question about FMLA and returning to work

[Snow mom]

I believe I read here that legally you must return to work for a full day after FMLA leave or you could be liable for the benefits/ wages paid to you during FMLA. Is that correct? Are all employers that are obligated to provide FMLA under this rule that you can resign after a single day back at work?

If that's the case, is it morally wrong to take FMLA leave with 99% certainty that you wouldn't be returning permanently to the job after the leave? The leave would be paid for by accrued sick leave which would be lost if not used before resigning. In addition, obviously a few extra weeks of benefits helps and it does cover that 1% chance that something doesn't go as envisioned and the job is wanted after the FMLA leave.

Thoughts?

[PZMommy]

I would read the FMLA info from your HR department. At my work we must return, but I can't recall for how long. If we do not return we must repay any payment we received during that time including sick pay. I believe there are a few exceptions like if you become disabled or have some major health issue as a result of whatever you needed the leave for. As much as I didn't want to go back, I knew I had to return if we wanted to have a roof over our heads and food on the table.

If it were me, I wouldn't want to close any doors permanently until I was 100% sure that I would not be returning. If that meant I had to take FMLA time and then return to work for a short while after, so be it.

[twowhat?]

If it were me, I wouldn't want to close any doors permanently until I was 100% sure that I would not be returning. If that meant I had to take FMLA time and then return to work for a short while after, so be it.

:yeahthat: This was me. I knew there was a possibility (though it wasn't 99%...it was more more like 20%) that I'd call it quits after the twins, but I came back to work and gave it my best shot. And then I called it quits. But definitely check HR for the specifics.

[twowhat?]

oops, duplicate post!

[fivi2]

I don't know the rules. That said, I did not return to work at all after FMLA. I fully intended to return when I started but freaked and couldn't go back. I never had to repay anything but perhaps my boss was being nice...

[speo]

When I left for maternity (early actually because I was on bedrest), I was sure that I wouldn't return with DS1. I don't think I had to pay back my sick pay. I do know that I did have to pay back my agencies' insurance premiums for that time period.

[TxCat]

Definitely check with your HR dept. A friend who is a state employee had to return for the same amount of time that she took off for maternity leave (in her case I think she took 8 weeks). It became an issue because her husband found a new job in a different city right after the baby was born, and they had to live apart for 2 months, while she essentially "paid back" her maternity leave, before she could quit her job and not have to pay back any of her paid leave or benefits.

[dhano923]

I'm an HR manager in CA. Under FMLA, an employer may seek reimbursement if the employee notifies the employer of their intent not to return to work, or if the employee does not return to work when the leave ends.

If you know you will not be returning to work, the proper thing to do would be to let them know of your intent, so they can find a replacement, or extend/keep the temp in your place.

[kbud]

I don't know about any legal issues but I don't think there is anything wrong with it in this day and age. You never know what could happen. I didn't resign until after the leave. I never went back a day but I don't think there was anything to repay. I knew I wasn't going back to work but if DH lost his job then I would have. Also the way things are now most employers will do what is best for the company and not you. So do what is best for you as long as you are not violating any policies/laws.

[Pear]

I asked my hr what would happen if I changed my mind and didn't come back. They told me I had earned the maternity leave pay and I should use it. If. Decided not to come back, I had no financial obligations to the company. I don't know if my employer was unique.

[doberbrat]

Seeing as my former employer told me I was being laid off on the day I got back from maternity leave, I would check w/your company's hr policy and follow that. I wouldnt feel guilty at all.

[BayGirl2]

I'm an HR manager in CA. Under FMLA, an employer may seek reimbursement if the employee notifies the employer of their intent not to return to work, or if the employee does not return to work when the leave ends.

If you know you will not be returning to work, the proper thing to do would be to let them know of your intent, so they can find a replacement, or extend/keep the temp in your place.

I agree with this. It builds your credibility over the long term, IMO. And hosestly, it helps the credibility of women in general. One barrier I see to women in the workplace is lack of trust that they are committed to their careers. Every time someone says they'll be back, an employer accommodates them, then they go back on their word it affects the next pregnant woman.

I get that things change and plans change. But if you fully intend not to come back but lie about it, to me that's unethical. Just my opinion a professional woman struggling to overcome these stereotypes and have equal opportunities.

[KrisM]

I agree with this. It builds your credibility over the long term, IMO. And hosestly, it helps the credibility of women in general. One barrier I see to women in the workplace is lack of trust that they are committed to their careers. Every time someone says they'll be back, an employer accommodates them, then they go back on their word it affects the next pregnant woman.

I get that things change and plans change. But if you fully intend not to come back but lie about it, to me that's unethical. Just my opinion a professional woman struggling to overcome these stereotypes and have equal opportunities.

For me, it seemed to be hard to be 100% sure. I was sure I wanted to be a SAHM. BUT, what if something horrible happened? What if the baby died during birth or just after? Then, I'd have no baby and no job. So, I told my boss that I might come back, but probably not. I also figured they had to get someone to do my job for the 10 weeks I was planning on being out anyway. It wasn't going to just sit there undone until I got back.

[anonomom]

For me, it seemed to be hard to be 100% sure. I was sure I wanted to be a SAHM. BUT, what if something horrible happened? What if the baby died during birth or just after? Then, I'd have no baby and no job. So, I told my boss that I might come back, but probably not. I also figured they had to get someone to do my job for the 10 weeks I was planning on being out anyway. It wasn't going to just sit there undone until I got back.

I think what you did was fair -- you were honest with your boss. They can't ask for more than that.

I agree wholeheartedly with the PPs who say that if you don't plan on going back, then you need to tell your boss that. Back when I was working, several women pulled this -- leaving for maternity leave with absolutely no intention of coming back. They were open with their intentions with everyone except HR. I know one woman who told her co-workers she was leaving for good (but told the partners she'd be back), then spent her maternity leave looking for a new job. She came back for one day, only to give notice that she was jumping firms, effective immediately. That one did not go over well.

[o_mom]

I agree with this. It builds your credibility over the long term, IMO. And hosestly, it helps the credibility of women in general. One barrier I see to women in the workplace is lack of trust that they are committed to their careers. Every time someone says they'll be back, an employer accommodates them, then they go back on their word it affects the next pregnant woman.

I get that things change and plans change. But if you fully intend not to come back but lie about it, to me that's unethical. Just my opinion a professional woman struggling to overcome these stereotypes and have equal opportunities.

If companies didn't tie benefits and FMLA to returning, it would be a lot easier for women to be honest. It's set up to reward lying. Tell the truth and get nothing /have to pay back money, or, lie and get paid leave and benefits.

I really don't get why they do that. If I worked for a year, took maternity leave and then came back for 4 more years before quitting, why is that any different than working for 5 years and quitting after maternity leave?

With the first, there is no concern about paying back benefits, but with the second all of a sudden it is.

[khalloc]

Seeing as my former employer told me I was being laid off on the day I got back from maternity leave, I would check w/your company's hr policy and follow that. I wouldnt feel guilty at all.

:yeahthat: I took my 3 months off of maternity leave (unpaid except for 6 weeks of short term disability and maybe a week of vacation time) and I came back and 9 days later I was laid off.

It would have been nice if they told me sooner so I hadnt lined up daycare for my baby.

[wellyes]

I would be honest. 99% is pretty sure. From your coworkers and managers' perspective, it is the difference between covering for you for 3 months, then starting a job hunt, then training a replacement vs an easy transition as you leave for your SAHM phase of life. Keep their goodwill by being forthright.

I do have one aquaintence who was forced to pay back some when she didn't return (she was a bank teller), but, anecdotally, there are probably more stories of woman who did not have a financial consequence.

[egoldber]

What do you mean exactly by FMLA leave? FMLA itself is unpaid leave. It just gives you the right to take up to 12 weeks of leave, unpaid, in a calendar year and still have your job back. One may or may not receive pay during FMLA time depending on the state and your company policies.

Each state and company treats maternity leave differently. If you are using accrued sick leave to receive pay during your FMLA leave, then I would feel absolutely zero guilt about not coming back. You have earned that leave. If you are being paid short term disability by the state, I would feel no guilt. It's a benefit of working in that state and paying taxes. If the company is paying you as a benefit of having been an employee for a certain length of time, I might feel some small bit of guilt, but not a lot.

[KHF]

My company gives us 6 weeks of paid time for maternity leave, then we can take an additional 2 weeks of our paid vacation time and then we can opt for taking 4 additional weeks unpaid to fill out the remaining weeks of FMLA. I took the full 12 weeks for both kids. I was required to pay my health insurance premium (my part, not the part the company pays) for the 4 weeks I was not paid.

We have had people take all of the 6 weeks of paid time, then their 2 weeks of vacation time and then call and say, "Not coming back." I do think it's somewhat dishonest if you tell HR that you are coming back and you know that you are not. A couple of the people who worked with me told everyone they 100% were not returning but did not tell their managers. It left us in a bind, as it was two people from the same 4 person department and their leaves were consecutive.

You have to work here for at least a year or two before you qualify for the 6 weeks paid maternity though, so I do believe they earned their leave according to our employee handbook. I suspect that if they'd been honest with their managers, they could have gotten their leave paid and still we wouldn't have been left in the lurch at the end when they just quit.

[crl]

I worked for the federal government. I intended to go back but they refused to work out a part time schedule, despite a previous agreement that I could go part time. So I did not return. I had assurances nearly a year before hand (we adopted and I discussed with my supervisor as soon as we sent in our paperwork and said very upfront that I wanted to go part time, was thinking twenty hours a week, and if he thought my job wasn't suitable for part time I wanted to know so I could look for one that was either in or out of our agency). But upper management changed and the only part time offer they gave me was thirty six hours a week. So I tried very hard to do the right thing and got completely screwed. I would not feel any obligation to do anything except what is best for you.

I did not have to pay anything back. Not sure how that could have been possible as I used accrued sick and vacation days.

Catherine

[Philly Mom]

You probably need to look at your employment manual or guidelines. Some companies require you to pay back benefits/salary paid to you during leave if you do not return, others do not. It is expensive for a company (especially a small one) to have an employee on leave because they are not earning any revenue from that employee and may have to find a temporary replacement who they also need to pay. It is worth it to many companies to provide some sort of paid leave because they want to attract certain employees and keep them happy. If the employee is not coming back, it is a harm to the company, so requiring the money to be paid back is to protect the company.

[BabbyO]

Seeing as my former employer told me I was being laid off on the day I got back from maternity leave, I would check w/your company's hr policy and follow that. I wouldnt feel guilty at all.


:yeahthat: I took my 3 months off of maternity leave (unpaid except for 6 weeks of short term disability and maybe a week of vacation time) and I came back and 9 days later I was laid off.

It would have been nice if they told me sooner so I hadnt lined up daycare for my baby.

I think I know one of you two ladies! I had a co-worker who was told right after her MA leave (not sure if it was 1 day or a week or so) that she was being laid off. I don't know exact day because it occurred shortly after I was laid off... Anyway, I thought this was the crummiest thing ever!

To the question at hand. You need to find out what your company's policy is and what the state policy is. How are you benefits/time off paid. Are they earned vacation/sick/short term disability and unpaid leave? Do you pay your insurance premiums during unpaid leave? Is there earned, paid maternity leave? All of those things affect your decision.

In my case for my first leave the company "did me a favor" by allowing me 12 weeks (8 weeks paid through STD and Vacation/sick time the rest unpaid). I hadn't been with them for 1 year and didn't qualify for FMLA. So I took a risk...they didn't have to hold my job for me, but did. In that case it would have been unethical to not return for sure.

For my second leave I qualified for FMLA and my time was a combination of paid/unpaid. I had to pay my insurance premiums for the unpaid portion so I would have felt a little less guilty if I hadn't returned...but really I don't think I could personally do that.

Of course, I know I was asked point blank several times if I intended to return to work. For me...working is not optional...so it isn't anything I've had to wrestle with.

[egoldber]

I know many women who have promptly been laid off after returning from maternity leave, so that makes me feel more than a little jaded about being "fair" to the company when they often have no reciprocal feeling of fairness.

[L'sMommy]

I have not read the responses, but I'm an HR Manager for a large company. We have had a ton of women who went on maternity and never came back. My company does not require any repayment of benefits if you resign when your leave ends (you don't have to come in at all). I also find that managers these days are well aware there is a chance that the new mom wont come back and they have already thought through Plan B. I have not seen any managers express dismay/anger when a mom decides not to return to work after being on maternity leave. Most are very understanding.

ETA: oops, forgot to say that you should check with your HR on this. Maternity leaves are handled differently at every company.

[Snow mom]

I know many women who have promptly been laid off after returning from maternity leave, so that makes me feel more than a little jaded about being "fair" to the company when they often have no reciprocal feeling of fairness.

I think this is what I struggle with too. The company in question has done a number of truly egregious, unethical things to the employee (to be clear, I'm not eligible for FMLA so despite being 7 months pregnant, I'm not directly involved in this.) We all know two wrongs don't make a right, but I'm not sure how "wrong" I feel taking accrued sick leave before leaving a job is. It is leave that was earned that happens to be legal to take (if planning on returning to work, at least) due to FMLA eligibility. And it's hard to be 100% sure that in 8 weeks you wouldn't want the job back--there are too many things that can happen in that time to really be 100% certain about a decision to quit.

[BayGirl2]

If companies didn't tie benefits and FMLA to returning, it would be a lot easier for women to be honest. It's set up to reward lying. Tell the truth and get nothing /have to pay back money, or, lie and get paid leave and benefits.

I really don't get why they do that. If I worked for a year, took maternity leave and then came back for 4 more years before quitting, why is that any different than working for 5 years and quitting after maternity leave?

With the first, there is no concern about paying back benefits, but with the second all of a sudden it is.

They don't. FMLA is a federal policy that protects your job, so a company can't fire you for taking 12 weeks off to have a baby. Its something women fought to win. Pay for that time is separate, and usually through vacation, sick time, or short term disability. In many cases you can get those things whether you return or not - in CA at least you receive vacation payout when you quit, so you'd still get that money, state STD is based on what you paid into it. (Now the fact that benefits are tied to a job is a broader issue, one that Health Care Reform tries to address.)


I have not read the responses, but I'm an HR Manager for a large company. We have had a ton of women who went on maternity and never came back. My company does not require any repayment of benefits if you resign when your leave ends (you don't have to come in at all). I also find that managers these days are well aware there is a chance that the new mom wont come back and they have already thought through Plan B. I have not seen any managers express dismay/anger when a mom decides not to return to work after being on maternity leave. Most are very understanding.

That's my point though. I will always be a working mom, I'm very committed to my career and trying to advance to a very senior level. However every time I get pregnant there's they hint of doubt in senior management's mind that I will return. My likelihood of something happening that makes me a SAHM is about equivalent to the likelihood of my boss having a stroke and being permanently disabled. Still, because there's a credibility gap among women in the workplace I have to fight this perception.

Every time a study comes out about how women make less than men people are upset. This kind of stuff is just one factor of many that drives that data. Women before us worked really hard for policies like FMLA. I consider it a responsibility of our generation not to abuse those benefits.

And I don't buy the "they can lay me off" argument. Most of the time the layoff would have occurred earlier had you been not on leave. That stuff happens all the time these days, it sucks, but its a separate issue.

[o_mom]

They don't. FMLA is a federal policy that protects your job, so a company can't fire you for taking 12 weeks off to have a baby. Its something women fought to win. Pay for that time is separate, and usually through vacation, sick time, or short term disability. In many cases you can get those things whether you return or not - in CA at least you receive vacation payout when you quit, so you'd still get that money, state STD is based on what you paid into it. (Now the fact that benefits are tied to a job is a broader issue, one that Health Care Reform tries to address.)


FMLA protects the job (unpaid), but also covers benefits. That is one of the big points above, that if you say you are leaving, they don't have to provide the benefits and if you do not return, you may have to pay those premiums back.

In companies that have paid maternity leave, it can be tied to returning.