FMLA Eligibility Error

System

I could not find this issue in an earlier thread, so I thought someone out there may be able to shed some light on this. An employee who has frequently used intermittent leave often checks with HR on her eligibility, since she stays pretty close to the 1250 hours mark (yes, she is pretty savvy on FMLA). 2 weeks ago she checked and she was informed that she was eligible (1283 hours in the last 52 weeks). After reviewing accounting's records, we determined that the reported period from accounting was 53 weeks and the employee was not actually eligible for leave. Since she had already been informed that she was eligible, we covered the day off. This week she again calls in, but she did not get an update on her eligibility. Since she is not eligible, and did not give us notice prior to her leave so we could inform her she was not eligible, and she has exhausted all other options (vacation, excused absences, etc.), we would like to terminate her employment. Any thoughts on our proposed actions?

bsa

Check with your employment attorney ASAP if you haven't already. You said that she is FMLA savy -- she probably knows about retaliation also.

Gar

This question raises a question. Is the 1250 hour requirement a one-shot deal, or must an employee have worked the 1250 hours prior to each leave - even if the employee has, lets say, worked for the employer 20 years?

ks1

Have you notified the employee in writing that she is out of FMLA leave? Have you considered whether she is eligible for an accommodation under the ADA (which may include a short-term leave)? Consider how it would look if you terminate at the first possible opportunity just after your "mistaken" counting of eligibility hours. I would send the notice letter that she is out of time, then allow her to be on leave without pay for at least a few weeks. If your company uses "rolling" FMLA eligibility, also consider that if she comes back, only for a short time, she may regain eligibility.

Ellie

My understanding is that if the person qualifies for the initial leave, she does not need to "re-qualify" each time she is out using intermittent leave - for that particular condition. This would only apply, of course, if the initial paperwork from the medical professional determines that this condition is chronic or will require intermittent leave for a specified period of time. If each incident of intermittent leave falls outside of the initial paperwork's coverage - OR - if each situation is unrelated to the previous situation's condition, then you would re-examine the 1250 hour qualifier.

I don't know if this helps. I hope it does.

Theresa Gegen TX

I would call her immediately to let her know that she is not eligible and that tshe must report to work. She may be relying on the information that she got about eligibility in her last phone call.

Terminating her without giving her notice of her ineligibility and an opportunity to return to work could be legally riskly.

Good Luck!