FMLA Pickle - Help Please!

JM in ATL

I know there is a board specifically for FMLA issues, but I also know this one gets a lot more traffic and I need some feedback quickly on this pickle.

Tell me what your next move would be...

FMLA policy states that 12 month period is rolling.

Employee takes first FMLA related leave on 9/17/2004.

Throughout this time employee uses up several hundred FMLA hours for various injuries and illnesses.

His most recent injury occured in the beginning of September and his first day off attributed to it is 9/2/05. He was deemed completely disabled to work on Short Term Disability on 9/16/05.

His RTW date is 10/17/05.

From 9/17/2004 to 9/16/2005 he has used 448 FMLA hours out of 480 available. At that time he has 32 hours remaining. Which, if he can't return to work as of 10/17/05, he obviously has used.

The normal solution to someone with such horrible attendance would be to fire them once they didn't return after using up all 12 FMLA weeks, right? Well, unfortunately his doctor also claims that he is disable and eligible for STD. Soooo, while his FMLA time may have expired, he is still out on STD, which is an excusable absence. And it JUST SO happens that his STD time available would expire the same day that he is returning to work.

Do you see any way of getting around being out past your allotted FMLA leave? What would be your next move?

JM in ATL

Also, would ALL of his FMLA hours be applied toward the 12 month rolling calendar of the time that he took off last year or would his 12 weeks renew since his FMLA time went past the first date of his first FMLA incident?

Why couldn't we just have a yearly calendar. It would make things soooo much easier.

HRinFL

If you are using the rolling calendar, in my experience, ees begin to regain FMLA time once they pass the date the leave began the previous year. So, once he went past 9/17/2005, he began to accrue FMLA time at the rate it was used last year.

Also, if your policy allows for an ee to remain covered from absences being held against them while on STD, if there is a legitimate impairment that is keeping the ee out of work, I am not sure what you can do. We have a Disability Leave, that extends an ee's timeframe past FMLA. Unlike FMLA< it is not regulated and we define the criteria. It can only be used for the ee's own serious health condition. It also does not guarantee same job, pay, etc. It does give the ee first consideration when/if they are able to return to work. The upside is that for the "good ees," we can keep them past the 12 wekk limitation that is the FMLA. Down side is, there are those with habitual attendance issues that will use it as well. In my experience, being consistent, giving the same consideration to "good and bad ees," has not hurt us. The ones with recurring problems will eventually violate the policy and fall to the wayside.

LindaS

Since his being disabled under your STD plan counts as an excusable absence he cannot be terminated BUT he has exhausted all FMLA job related protection as of the date that his 12 weeks of FMLA expire.

In absence of some past practice to the contrary beginning with the exhaustion of his FMLA he would be removed from any health insurance plans and offered COBRA. He would also lose his job protection status which means that you have the ability to fill his job and place him in whatever opening is available once his is able to RTW. Because he has exhausted his FMLA the position does not have to be an equivalent one.

Hope this helps.

lorrie

It seems to me that using a rolling year, you look at a different time frame for every date of leave requested.

To determine eligibility on 9/17/05 look at the time frame from 9/18/04 - 9/17/05.

To determine eligibility on 9/18/05 look at the time frame from 9/19/04 - 9/18/05.

To determine eligibility on 9/19/05 look at the time frame from 9/20/04 - 9/19/05.

So, in addition to knowing that he took first day of leave on 9/17/04, you would need to see what days were taken after that.

An excel spreadsheet can be a quick & easy way to track the available leave on a rolling year.