"Eligible" employee

brown

Strange situation - suppose an employee is out on leave, covered by workers' compensation, for the last 35 weeks. The employer never notified the employee of her FMLA rights, though clearly the 12 weeks has passed. Moreover, the employee, having been out for 35 of the last 52 weeks, has not worked 1,250 hours. At this point, with no indication that she will be released to work in the near future, the employer needs to fill her position - resulting in her termination. Can that employee claim a violation of the FMLA, when she is not "eligible" because she didn't work 1,250 hours (though she's been an employee for 3 years and worked that amount in a year previous)?

skyrocket

There was a recent court decision (federal) that said the absence of a specific notification of an absence as FMLA did not mean the employee was entitled to additional time. If an absence could be considered FMLA, it is FMLA - according to my recollection of this court case. You may have state laws that affect this. For example, in California, our state laws still indicate that we need to do a notification or we loose the time not specifically noted.

psrcello

We had a similar situation - a really complicated workers' comp case, where the injured employee's treating physician recommended back surgery, but the surgeon to whom she was referred refused to perform the surgery. A court-ordered IME physician stated that she wasn't a surgical candidate "at this time", but may be in the "near or immediate future".

She had been off work for nearly a year, and was then able to come back to very limited duty. We hadn't notified her of her FMLA rights when she first went out. Because of the conflicting information regarding her need for surgery, as well as some other issues surrounding her case, we felt that it would be a gesture of good faith to offer her intermittent FMLA beginning with her return to limited duty.

Unfortunately, she exhausted her 480 hours of intermittent leave, and was subsequently terminated in a reduction in force. However, when her workers' comp case goes to court in September, I believe that the way we handled the FMLA issue will demonstrate that the company acted in good faith with respect to her employment with us - our attorney agrees.

LindaS

I believe the case Skyrocket is referring to is Ragsdale v. Wolverine wherein the decision was made, by the federal courts, that stated the failure of an employer to speficially notify an employee that their leave time was being counted against FMLA does NOT automatically grant an employee an ADDITIONAL 12 weeks off. You may want to do a search on this case since it was written about in quite a few different HR periodicals. As for continuing eligibility, my understanding is that an employee must work the 1250 hours EACH year to continue being eligible. So, for example, if an employee of 3 years is off work for 35 weeks, as you have specified, they would need to return to work and work 1250 hours before they would be eligible for another FMLA leave.

brown

Thanks - I guess the question boils down to this...where an employee has been out for over a year, and therefore hasn't worked 1250 hours, can they make an FMLA claim if they are not "eligible" because they didn't work the 1250 hours required? And, if not, does the fact that no FMLA notification was ever given change the answer?

Sue

We had a recent case that answered your question. We were told by our attorneys that the employee is not eligible if they did not work 1,250 hours (1,000 in Wisconsin) even if it was a covered FMLA illness.