Legal Question in Medical Leave in Ohio

FMLA Birth/Care of a Child

I am pregnant and due Dec 20th. My work goes on Holiday shutdown from Dec 22-Jan 1st. I expect to be able to work through Dec 21st and that I will give birth during the shutdown. My hr person told me that my FMLA leave must begin the day I have the baby. Is this true? Based on what I've read it seems that the leave should not start until the first day I would miss work, Jan 2nd.

Also she told me that for the last week of December I would be entitled to Holiday pay, but starting Jan 1 I would not be until I return to work.

Asked on 10/02/07, 6:15 pm

1 Answer from Attorneys

Eileen Joyce Baughman & Joyce LLC

Re: FMLA Birth/Care of a Child

It seems that your HR person could use a refresher on the FMLA. 29 C.F.R. section 825.200(f) (one of the many FMLA regulations) explicitly states that:

“For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within the week taken as FMLA leave has no effect; the week is counted as a week of FMLA leave. However, if for some reason the employer's business activity has temporarily ceased and employees generally are not expected to report for work for one or more weeks (e.g., a school closing two weeks for the Christmas/New Year holiday or the summer vacation or an employer closing the plant for retooling or repairs), the days the employer's activities have ceased do not count against the employee's FMLA leave entitlement.”

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Answered on 10/02/07, 6:56 pm

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