FMLA "indefinite"???
njjel
1,235 Posts
An employee's doctor has sent in the FMLA certification of health form. The ee was placed on FMLA and has been out 6 weeks. He originally had a return to work date of 4/29/05, but now the doctor has stated the r/t/w date is "indefinite". When his 12 weeks are up and he hasn't r/t/w I'm assuming then we can terminate this ee?
Comments
The physician’s note aside, the better question is, what are you hearing from the employee as far as when he/she plans to return. You are entitled to (and should press for) a little more succinct information. Unless the employee in question is incapacitated, the employer would be well served by getting as much information as possible before making a termination decision. While you are obviously not required to allow an employee to be away from work “indefinitely,” a blanket “day-85 and you’re out of here” policy would also be ill-advised. These types of decisions should not be made solely by way of calendar and calculator.
GENO
His/her injury/illness may not apply to some other vocation, but for yours, he/she is medically disqualified and not able to do the physical work associated with your company.
In order to retain control over this situation and all other similiar situations, you have no choice but to follow-through with the seperation from an employer/employee relationship. I would put the letter together, and have the ee come in prior to the 29th and discuss the situation with the employee. At the same time you should brief them on COBRA and any last payment of benefits out. Make sure to get a signature of the explanations or have a company witness should the person decide not to recognize what is being said or told. I just had one of these situations come to fruitation last week. The employee appeared to understand and appreciated my efforts to be up-front with this action. This week I will also help him when he applies for SSI, for he has the information in his posession.
I hope this helps you get through this difficult HR requirement.
PORK
Good Luck!
Check out section 825.205 (d) of the regs. In a former life, the company I was working for learned this the hard way. They terminated a long-term EE after he exhausted his 12 weeks (480 hours) and were - Charged with denial of leave, re-instatement and back wages for over 7 months and a pretty stiff fine, all because of the OT hours not being averaged and extra entitlement hours not given for each week of leave.
Thus, if an employee averaged 50 hours work prior to their absence and then only worked 25 hours (taking the rest of the week off), they would only be charged with one-half of a week of FMLA, meaning that it would take 2 weeks of such a schedule to equal one week, but the grand total of permitted FMLA time is still 12 weeks total.
I don't believe that an employee who averages 50 hours work prior to their absence and then does not work ANY hours while on leave gets any extra week's credits. A week is a week, and the maximum is 12. A 30 hour employee would not have their 12 weeks pro-rated downward to 9 weeks; they still get 12 weeks.
We may be both looking at different scenarios and are both correct.
Section Number: 825.205
Section Name: How does one determine the amount of leave used where an employee takes leave intermittently or on a reduced leave schedule?
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(a) If an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the 12 weeks of leave to which an employee is entitled. For example, if an employee who normally works five days a week takes off one day, the employee would use 1/5 of a week of FMLA leave. Similarly, if a full-
time employee who normally works 8-hour days works 4-hour days under a reduced leave schedule, the employee would use 1/2 week of FMLA leave each week.
(b) Where an employee normally works a part-time schedule or variable hours, the amount of leave to which an employee is entitled is determined on a pro rata or proportional basis by comparing the new schedule with the employee's normal schedule. For example, if an
employee who normally works 30 hours per week works only 20 hours a week under a reduced leave schedule, the employee's ten hours of leave would constitute one-third of a week of FMLA leave for each week the employee works the reduced leave schedule.
(c) If an employer has made a permanent or long-term change in the employee's schedule (for reasons other than FMLA, and prior to the
notice of need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.
(d) If an employee's schedule varies from week to week, a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period would be used for calculating the employee's normal workweek.
I think we are both thinking the same, just in different ways!
This does not become an issue until close to terminate stage. That's why I brought it up since the original poster mentioned termination.
According to the DOL investigator that handled a "complaint" situation a few years ago, if leave time is calculated at any time by the hour, such as those follow-up visits after surgery, then the ER is responsible to calculate any and all OT that the EE worked in the 12 months prior to leave to find the average # of hours that the EE worked per week and award that # of hours for leave entitlement.
As you and I both know, each investigator will have their own "broad interpretation" of the REGS and will also have their own opinions. (Just like the posters here!!!)
I can't tell you that not calculating OT would result in any problems all the time, but given what I witnessed at a previous ER, I'm not taking that chance. Before we terminate, when an EE's leave is close to being exhausted, we calculate all OT worked and award the excess of the standard "480 hours" to the entitlement.
Forget the Pork and salads - EAT MORE SPINACH
I still believe this calculation would only pertain to someone who requests intermittent leave, not someone who misses entire weeks at a time. I've not found wording indicating that 480 hours of absence is the standard. The main wording says to be eligible for FMLA benefits, an employee MUST...have worked at least 1,250 hours over the previous 12 months;...A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave... There's no wording I can find that punishes or rewards an employee for working more or less hours.
Maybe Don and I are misunderstanding still. If one of your employees is approved for FMLA, are you calculating all the previous hours worked and then determining how many weeks off they're entitled to? So, if an employee has worked 80 hours of overtime, you would allow them 14 weeks of FMLA? Sorry, but I've never heard of anyone doing that, anymore than telling an employee who has not worked 2,080 hours that they are not entitled to the full 12 weeks.
I would only use that formula in 825.205 to deal with an intermittent leave situation. An otherwise eligible employee can have up to 12 weeks, and no more, of leave no matter what their normal weekly work hours has been.
You are correct that the REGS do not ever refer to hours, but what I was trying to say was that most ERs calculate by hours when intermittent leave is taken. Yes, the section I referred to says 12 weeks but the investigator recommeded
(his interpretation) using the previous 12 months.
Here is a quick example that the DOL investigator used. And again this would only be used if the EE was being ready to be terminated and had used intermittent time.
An EE is scheduled for a 40 hour week. Over the course of the previous 12 months they worked 100 hours of OT. You take the normal 2080 hours for the 12 months, add the OT and divide by 52. That is the "adjusted average weekly entitlement hours" that the EE should be granted.
2080 + 100 = 2180 / 52 = 41.9 Average hrs. per week.
As the callers to Jim Rome's sports show say when there finished: War to FMLA, I'm out!
What if the guy is flat scheduled to work 60 hours a week. That is his workweek. If he takes a week off, what does he get? It doesn't make sense to give him a week and a half off.
Am I missing something. The law is anal and we have to get anal right along with it.
Popeye is 100% correct. I'm not going to reiterate all the reasons why, but our discussions with outside counsel and DOL say the same thing. Just remember -- "12 weeks of normal workweek." If normal workweek is 60 hours or 30 hours, then # hours x 12 weeks is the number of hours employee is entitled to take.
And the rest of you are correct to comment that this "calculation" is best and only used for intermittent leave situations. Like Don said, it one of his folks is working 60 hours a week and goes out on straight, concurrent 12 weeks of FMLA leave, then the employee is getting his 60 hrs/wk x 12 weeks. But if this employee were taking the 12 weeks intermittently, then on an hour by hour tracking, employee is entitled to 60hrs x 12 weeks = 720 hours of FMLA leave.