FMLA/LOA

Pat Dalton

In our hospital, we have a policy stating that when a person has exhausted FMLA (12 weeks) and is put on LOA (if continued time out is required), their job is no longer secure and may be filled, although they would not be terminated from employment until they had been out a total of 6 months. We have an ADA Sub-Committee that reviews each case to determine whether ADA may apply. In those cases, we would hold the position and re-evaluate periodically as we obtain up-dated medical information. HOWEVER, let's assume for the sake of this question that the person does not qualify under ADA, is placed on LOA, and his job filled. Let's say that 2 months later when the new year turns (we use Fiscal Year), he is still out. Is he qualified for another 12 weeks FMLA assuming he has worked 1250 in the previous 12 months? We had taken the position that if on LOA, he was not eligible for another FMLA. Recently, we were told that this is not the case and that he WOULD be eligible for another 12 weeks FMLA. IF HE IS....what is our obligation to him? Certainly we can't guarantee his former position since it was filled. What do others of you do with this type of situation? x:-/

Terry

[font size="1" color="#FF0000"]LAST EDITED ON 08-05-02 AT 02:26PM (CST)[/font][p]There is more than one way to count FMLA time, calendar year, fiscal year, rolling calendar, etc. I believe, most companies use the rolling calendar method. Here is the link for infomation counting the year. [url]http://www.hrhero.com/hrheroline/120701.shtml[/url]

How have you counted the time in the past?

Pat Dalton

We use a Fiscal Year (Not rolling). So an employee has 12 weeks between 10/01 and 09/30. Then potentially has another 12 weeks according to what we have just been told by a consultant (if they have worked 1250 hours in prior 12 months). This is a hypothetical case for the moment....but assume he did get 12 weeks this FY and then went on LOA (Job filled per Personnel Policy). 10/01 if he has worked 1250 hours in prev. 12 months, would he be eligible for 12 more weeks even though he has not returned to work? If so, what are our obligations to him, since we have filled his position?

Don D

If I'm understanding clearly how you count your year,then, yes the ee would be eligible potentially for back to back 12 week periods, equalling 24 straight weeks. That's why most recommend a rolling forward method, with the year beginning on the first day of FMLA and expiring 364 days later. That way, 12 weeks in a row is the max they can take under standard federal FMLA. Your policy has set you up for this each time it happens. You can always change your method, but cannot use a change to affect any ongoing situation with a particular person. You must announce and publish your change plans in advance of an effective date and follow it consistently. There is no real good reason to use a calendar year or fiscal year method that I can imagine. It's a no-win for the employer in terms of total days out almost every time.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 08-05-02 AT 05:34PM (CST)[/font][p]Pat, I understand your basic question, given the situation you described, as something like, "Is the employee entitled to restoration to the same position he held when he went on original non-FMLA, now that he has subsequently become eligible to and is on FMLA leave? In this case, the original position was filled in part because the employee wasn't originally on FMLA and, therefore, it is not currently available."

Is my understanding correct?

If so, FMLA only requires reinstatement to the same or "equivalent psoition" the employee held when the FMLA leave commenced. Since the employee did not go on FMLA leave directly from the position, it seems to me, given other FMLA regulations, that the employee isn't entitled to return to the same position. But I would try to return to an equivalent position. That result could be more "sustainable" if legally challenged than the next possibility. You may be able to argue, that the employee isn't even entitled to that, but merely to restoration to a job. For your actual situations which involve leaves as reasonable accommodations under ADA that subequently turn into FMLA, take a look at 29CFR826.16(d).

ADA would seem to require that, as part of the original reasonable accommodation for the leave, the employee be returned to a vacant job that the employee can perform with or without reaonsable accommodation. There is no requirement under ADA, that I can see, that a job be held open for the employee who is on ADA leave as a reasonable accommodation. A comparable or equivalent job may be appropriate. But for a better reading on that issue, you need to talk to an attorney versed in ADA issues.

In your hypothetical, if the employee wasn't on any "protected leave" status, such as leave under ADA reasonable accommodation, when the FMLA leave began and did not take leave directly from his position, then you could argue that there is no right to return to the original job or even any equivalent job. But that's hypothetical. You would probably need an actual court ruling to develop a guide because it doesn't appear that the FMLA regulations directly contemplate the situation.

LFernandes

You may also note that the employee must "qualify" for FMLA leave which means he has to be employed at least 12 months prior to the commencement of the leave (12 months need not be consecutive) and worked at least 1250 hours during the 12 month period prior to the commencement of the leave (this does have to be consecutive). If the EE has been out on FMLA leave and then Personal Leave, chances are they haven't worked the required 1250 hours. This is covered under Section 825.110 and 825.500 of the FMLA Regs.