Can I change my return-to-work date while on maternity leave?

Question:

I'm using the Family and Medical Leave Act (FMLA) for my maternity leave. I used my paid sick and vacation leave to get paid for the first few weeks, but now I'm on unpaid leave. I've taken a total of eight weeks off so far, one before giving birth and seven after. I initially planned to go back to work after eight weeks because my family needs the income. However, our child care arrangements just fell through, and I'm going to need more time off to figure out what to do. Do I have the right to extend my leave?

Answer:

The federal FMLA gives eligible employees the right to take up to 12 weeks off in a 12-month period for certain reasons, including incapacity during pregnancy and childbirth and to bond with a new child. Assuming you haven't taken any FMLA leave for other reasons in the past year, you have used a total of eight weeks of leave. So, you still have four weeks of FMLA leave available to you under the law.

That doesn't mean you can extend your leave at any time and for any reason you want, however. The FMLA imposes notice requirements on both employers and employees. As you likely know based on your recent experience, employees must generally give 30 days' notice when they need leave for a foreseeable reason, such as childbirth and parenting. An employee whose need for leave is not foreseeable must give as much notice as is practicable under the circumstances.

You are already out on FMLA leave, and you need more time off due to an unforeseen change in circumstances. In this situation, the regulations interpreting the FMLA state that you should give your employer "reasonable notice" of your changed circumstances. According to the regulations, it would be reasonable to give notice to your employer within two business days of learning of the change.

Based on this interpretation, you should immediately get in touch with your employer and report that you will need more time off. Be sure to explain why you need additional leave and that this was an unexpected change. Your employer is entitled to request periodic status reports on the status of your leave and when you plan to return to work.

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