Can the company designate an unpaid leave as FMLA?

Crout

Once again I come here in search of wisdom and knowledge, and quite honestly I have never been disappointed. We have a Manager who has been with us for 9 months. She would like to take an unpaid leave to care for her sick mother, and can produce the required documents verifying that. Our policies allow the CEO to grant such a leave, and I'm sure that he would. My concern, however, is that from what I can see, there is nothing stopping the EE from potentially taking the unpaid leave for 12 weeks, (which would end around her one year anniversary) then turning around and taking ANOTHER 12 weeks, this time designated as FMLA. So my question is: Can we somehow designate her request for unpaid leave as FMLA, even though she is not eligible for FMLA at this time? I'm certain that we can't, however, I thought it might be worth a shot to see if anyone had an idea. You guys are great. Thanks for your help.

Rockie

First of all, why would you grant a 9 month employee 12 weeks of unpaid leave? 12 weeks is not a magic number unless they do qualify for FMLA. If you wanted to grant unpaid leave, I think 30 days is plenty. If you let this person have 12 wseeks that she is not entitled to, then when she becomes qualified for FMLA, she can take another 12 weeks. Keep in mind that you will be giving almost 6 months of leave to a person who has worked for you 9 months.

Crout

For the purposes of this question, just assume that that we would. And as a matter of fact, if the EE asked for 12 weeks it would not shock me if the CEO granted it. He is one of those rare CEO's who is genuinely concerned with the well-being of the people in his employ. As is often the case, I see my role as playing devil's advocate to guard against potential problems. Thanks for your response.

Margaret Morford

Crout,

You clearly grasp the all the issues here. If you designated her leave as FMLA, you have just created for your company an eligibility period that is more generous than FMLA. I think you can do that, but I don't think you want to open the door to allowing everyone from this point forward to be elibible for FMLA with your company at 9 months instead of the normal 12 months.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Hatchetman

No.

If you grant leave now before she is eligible to FMLA, then you are doing it under your own policy and not FMLA requirements. Thus, if at the end of one year, after accounting for the 1,250 hours of work, if she qualifies for FMLA, and needs it at that point, then you would have to authorize it (or delay it up to 30 days)and then start counting THAT toward the 12 weeks.

Don D

Crout: I think all the responses given are true. The only glaring "NO" answer to the question you posed is that no, you cannot designate the unpaid leave portion (granted by the CEO) as FMLA since she is not at that time qualified for FMLA. You can however call it whatever you decide to call it, but it cannot supplant the FMLA that she is soon to be eligible for. In your scenario you may very well have a 9 month employee who is granted 6 months off consecutively. That is the company's option. I disagree with Margaret when she says, "You have just created for yourself....". I understand and support all the wisdom behind 'precedent setting' and know how dangerous it can be to 'do it for one and not for others'; however, as to whether this precedent of the CEO's establishes or sets a policy moving forward is up to your CEO. He has the checkbook I assume and can choose to follow or not follow the precedent moving forward and he may have to write a check or two for so doing. Some states have laws more generous than FMLA as do some employers. As long as he is fully aware of the fact that he may be setting himself up for future challenges from every corner, more power to him. Hang on to your hat. x:-)