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Not Returning Back to Work after the Initial Mandatory 6-Week Period? (California)

by G
(Whittier, CA, USA)



Hi, I gave birth to my daughter and was obviously given the mandatory 6 week leave. They HAD to hold my position during this time. However, my daughter would not be given her immunizations until week 8. I cannot get her into a reputable childcare facility without them. I explained all this in an email to my employer and I opted to take the 6 week FMLA, unpaid obviously by my employer. During my first week of FMLA my employer decided to let me go and hire my temp on full-time. My boss sent me a letter acknowledging the termination but asked me to sign and return a form which says, "I am choosing to quit my job on... (date)" and a box marked "voluntary quit" is checked.

I believe they are trying to make me sign this form so that I cannot file for unemployment. They had work that I COULD do and was WILLING to do once I returned from the FMLA. However, because my previous employer was smart about the way they hired employees, the required number of employees to make them have to hold my position open during the FMLA fell short. They hire employees under 2 separate entities I believe so that they are not subject to certain laws and restrictions. I informed my employer in a letter that I would not sign this form but would be happy to sign an amended one which reflected THEIR decision to terminate. I did not choose to not come to work, they chose to not let me take the FMLA and then return in 6 weeks. So, do I have a shot at filing for unemployment? Please help!


Hi G,

A little clarification on the status of your FMLA is needed. Did they or did they not approve 6 weeks of leave time whether FMLA or personal?

In other words, do you have paperwork approving FMLA or a personal leave?

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=)
by: G

Okay, thank you!

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California paid family leave
by: Chris - webmaster:)

California paid family leave is not FMLA and the number of employees has nothing to do with whether you are eligible for it or not.

Whether your employer is doing something illegal to avoid having to offer FMLA .. I don't know. This would be something you might question the California Labor Board.

My instinct is that it is not illegal.

As to the treatment of others with regard to allowing personal leave or not .. they can do pretty much as they please, but you could certainly try to use that as an argument .. including the conversation with the guy who said "we'll play it by ear".

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Okay well
by: G

...what about the fact that they specifically created two separate entities both operating out of the same exact location with the same exact owners it seems to avoid having to fall under being subject to PFLA as well as other reasons, I'm sure? There are the required fifty employees when combined I would think this is some type of evasive, deceptive maneuver that might not necessary be exactly lawful? I know how it will most likely come out if I file for unemployment but I am hoping there may be something to be said of them setting previous precedence with other employees

Oh, and thanks for your explanations =)

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A failure to return from leave is a voluntary quit.
by: Chris - webmaster:)

Hi G,

I think your problem is first that you haven't been on FMLA, for which an employer needs to have at least 50 employees to comply with the act. You've been on Paid Family Leave which is unique to California.

This type of leave is limited to six weeks per twelve month period. So any leave you may have gotten after this six week period would have been a personal unpaid leave and it must have been approved by the employer.

So basically, if you thought just informing the employer was enough .. you're wrong. The employer wants you to sign that form because you voluntarily quit when you failed to return to work on your return to work date.

This is considered a voluntary quit without good cause .. unless you can convince the state that you needed those extra six weeks so you could get your newborn immunized in week eight so you could get the baby into a "reputable" daycare".

It's a weak argument because you have not stated that you made any effort to secure any type of childcare for the interim, until at which time you could get your baby immunized.


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Response
by: G

Yes, that is correct.

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In Response
by: G

I'm sorry, to clarify it was PFLA and not FMLA or whatever. My employers did not approve nor did they disapprove of it initially when I let my boss know my intentions, the fact that I wanted to take off an additional six weeks, my boss even looked up the paperwork for the PFLA and gave it to me saying they did this for another employee of theirs who needed time off to care for a sick family member so obviously they have done it before. I do not know if this counts as precedent or not. In fact, when I initially left for materity leave my immediate boss said we would "play it (the situation) by ear." They then let me go.

Thanks for any information =)


How long have you been out on leave. Clearly your employer does not have to offer FMLA if they have under 50 employees, but because it was a personal your job is not protected.

Here's what I'm picking up and you let me know if I'm wrong.

You initially went out on leave for six weeks and at the end of that time you requested additional leave because your baby couldn't be immunized until 8 weeks .. correct?


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Is FMLA mandatory by employer?
by: Anonymous

Doesn't the employer HAVE to accept FMLA if proper medical paperwork is given to the employer by a physician or therapist? I thought the reason for the FMLA act was to protect us, not to let the employer decide if they would accept our medical condition as an FMLA covered condition. Am I wrong?

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