FMLA Leave - When to Notify an Employer

[Ingus]

My question involves labor and employment law for the state of: North Carolina
FMLA
I realize I should give 30 days notice to employer when I can of my need to take leave (for medical Necessity)
My problem. I work for a car dealership Chrysler and job security does not feel good at this time.
I am afraid that if I tell them I need to go out for the extensive surgery I require to my back that I may be terminated before the actual surgery and at that time I would not be able to afford the insurance costs without there money input to my insurance.

Other important info. I had surgery and was on FMLA within the last year and was out for the full 12 weeks with same employer. I am not sure if I can even use FMLA since I believe you only get 12 weeks in 12 months. Or maybe I have earned another 2 or 3 weeks since my return to work. I can't figure how that works.
I realize this is a compound question but any help is appreciated.
Should I tell them soon before anyone gets layed off?
This is a serious back condition that requires six vertebra being fused and can not be put off. Surgery is scheduled for July 20th 2009
Thanks, Karen

[cbg]

Giving them 30 days notice or, if 30 days is not possible, as much notice as you can, is a statutory requirement. Being afraid that *maybe* they will let you go sooner is not a valid reason to refuse. If you are fired specifically because you are in need of FMLA, that is illegal and you have legal recourse available to you. In any case, you would be eligible for COBRA. If, however, you would have been laid off anyway because of budget cuts, departmental reorganization or whatever, then that is unfortunate but legal. Needing or taking FMLA only protects you from layoffs or terminations RELATED to the FMLA - it does not protect you from layoffs or terminations that would have happened whether you took FMLA or not.

There is more than one way of calculating the 12 month period and only your employer can say which method they use. Depending on which method they use, you may or may not be eligible for additional time by now, but we cannot tell you that from here. You'll have to take it up with your employer. If you are not eligible for FMLA yet, you can legally be terminated for the absence, whether it is medical in nature or not; whether it is medically necessary or not; whether the date of the surgery cannot be changed or not. But again, you would be eligible for COBRA.

You should tell them with as much notice as possible since that is what the law says to do.

[Ingus]

Thanks you for the comprehensive response. Even though I am nervous, you are right, I have to do the right thing as stated by law and if that puts me in there there sites for the eventual layoffs, then so be it. Health first. I guess under Cobra I can rack up some credit debt and keep my insurance.
Most of all, keep faith and sit with my employer and discuss the situation and hope for the best. I actually believe my employer will try to do the best they can to help me. I hope I am not asking to much.
Thanks again, Doing the right thing and feeling good about it, Karen

[mmmagique]

You should have a booklet or there may be something online (like my fiance's college does) that explains how they calculate fmla.

There will be something in writing somewhere that you have been given access to; you just need to find it! (if you're not comfortable bringing it up with your employer before you know what their policy is)

[cbg]

Karen, if you are laid off and you can show that you would not have been laid off had you not been in need of FMLA, you have legal recourse.

Let's put it this way. If there are layoffs close enough so that you're already concerned about them, they probably have a pretty good idea who is going to be laid off by now. If right now, today, you are already on that list, then FMLA will not protect you. If, however, you are not on that list today, and the day after you announce that you need FMLA someone else's name is removed and yours inserted, that's illegal and you can take legal recourse.

Does that make more sense?