FMLA in Handbook

Paige

I have just recently learned that our company is not covered by FMLA because of our size. However, we have an FMLA policy in our handbook. I thought I remember reading about a case with a similar situation--the had a policy in their handbook, someone applied, they denied saying they were not covered by FMLA, but the person had to be granted FML anyway because it was stated in the handbook. Is this true?

CuriousG

I believe that the Appeals Court ruled in cases like this that an employer can not be forced to provide a benefit beyond that required by the Act. If the employer did not meet the size requirement to be covered by the Act, then the courts ruled the government can not force them to provide the benefits mandated by the Act. Now, if you have previously granted some employees FMLA "like" leave and suddenly want to deny it to this employee that would not be an FMLA issue, but could be an issue of discrimination depending of the ethnicity/race, age and gender of the employees involved.

If I were you I would amend my Handbook to either 1) delete references to the FMLA, or 2) make the reference conditional upon the company meeting the requirements for coverage under the FMLA. I also would distribute notices this effect to all employees through some channel that would verify receipt.