FMLA Question - advice needed quickly

Meg

I know this is an FMLA question, but am hoping that this may getter a faster response in this area.
I got a call from an HR manager at one of our sites and am not quite sure about the answer to give her. Apparently there was an employee who went out to have a baby in November. She was not yet eligible for FMLA. However, this manager allowed her to take “personal” time. I don’t know if she was having complications or not, but her doctor is now releasing her from his care. This employee became eligible for FMLA while she was out on leave.
My question is if she is now allowed 12 weeks from the date she became eligible? Can we count the time she was out on “personal” leave as time going against her FMLA? My thought is yes – this woman should not be allowed to take 4 months total – I feel it should be a total of 12 weeks of leave. My manager was sympathetic and did not want to loose this employee and allowed her to take the leave before she was entitled.
I also know that whatever happens in this situation will set a precedent for this location. While I don’t think it is a good idea to allow employees to take leave before they are eligible, I can understand that this woman was very close to becoming eligible – I just don’t want this manager and her location to be taken advantage of.
Are there any legal implications that would require us to give this woman more than 12 weeks of any type of leave?
Answers would be greatly appreciated, as I need to get back to my manger and the employee.

Paul in Cannon Beach

I am not an expert on FMLA but my initial reaction would be that you cannot go back and count the personal leave she was given as FMLA.

My reason for saying this is that you don't know if the personal leave qualified as FMLA and also that my understanding is that you can't retroactively designate leave as FMLA after the fact. It doesn't sound like anyone told her at the time that her personal leave would be FMLA.

Start the leave when she has qualified for it and when you have indicated to her that has started.

Again, not my specialty so I defer to wiser minds.

Paul

Meg

What if she went out due to a medical situation - for example, she needed bed rest to ensure a noraml delivery? She was told she didn't qualify for FMLA so I guess we can't count it now - tod bad!

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 01-21-03 AT 12:15PM (CST)[/font][p]Your company is indeed at liberty to grant MORE than the law requires in the way of FMLA. If your company decided that it would indeed allow her to take what amounts to FMLA before she qualifies, that is the company's decision, albeit precedent setting perhaps. Yes, it is proper for a company to backdate FMLA in certain cases, but this doesn't appear to be one. Courts have ruled that a company is not prohibited from going back in time to retro FMLA but there are some restraints on that. As far as what she is legally entitled to now, that's a good question. The courts might suggest that the Act didn't intend for her to have more than that which is required by the Act (total of 12 weeks). On the other hand, you may find that since she was not legally eligible for FMLA until she met the definitions (1 year), her 12 week entitlement begins only after that date. I really think that your benevolent extension to her of free time off prior to qualifying for FMLA is one thing and the 12 weeks which ensue after her eligibility date is quite another.

cthr

Just because she wasn't qualified for FMLA, doesn't mean she wasn't covered by the Preganancy Disability Act or some similar state protection. Count the 12 weeks leave from when she became eligible, not from when she went out.

LindaS

I would provide the employee with the FMLA paperwork and once it was returned I would beging counting from the day she was eligible for FMLA leave. As someone who works in a union setting I understand the importance of setting precedent but this would give the employee the 12 weeks off (including time off for the actual birth) and reduce your exposure to grant additional time off.