FMLA clarification?

Question

My husband plans to quite his job on Aug. 8th. He begins his new job on Aug. 18th (he cannot adjust the start date as the training is a classroom group training that lasts 6 wks). Medical insurance from his new job will not start for about 8 wks. Here is the thing. I am due to have our first baby on Aug. 20th. We need to be on his current jobs medical insurance for the delivery of our baby. Is it legal for him to start a leave of absence under FMLA on Aug. 8 and then not return? In his employee handbook it says. "you may be periodically required to report on your status and intent to return to work". If he uses the FMLA for insurance until our new insurance kicks in can his company come back around and sue us? Is the COBRA act our only legal option in this case? Thank you for all of your help!

Answer 1

You are better off paying for benefits under COBRA, FMLA is only job protection, nothing more.  Besides, you will have to pay the insurance premiums anyway under FMLA as there is not monetary compensation.

Answer 2

I believe he can legally choose to take a FMLA leave from his current job and then choose not to return at a later date. With most companies the employee is still responsible for their portion of their medical benefits while they are out, so they could not come back and sue you for the benefits.

However, if the company was to find out he is working at another job while he is on FMLA leave with their company, I would think they would be within their rights to do so.

COBRA may be the best ethical option. You don't have to carry it until his new insurance starts, you can drop it after the baby is born. You may want to keep it in the event something comes up, babies have a tendency to have things come up.

Good Luck & Congrats on the new baby!

Answer 3

Employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, the employer may not restrict your activities. The protections of FMLA will not, however, cover situations where the reason for leave no longer exists, where the employee has not provided required notices or certifications, or where the employee has misrepresented the reason for leave.

SO it depends on a couple things. He would need to start his FMLA when you have the baby, unless you can have a doctor certify that you are unable to take care of yourself before then. Plus he needs to check his policy book for what the policy is at his current work about workign 2 jobs. Plus decide whether it is misrepresentation. I would do it because the reason is legit (you are having a child), but he must "intend" on returning.

Just a thought, he definitely should not file for Short Term Disability if he has it through the company.

Good luck and congratulations!