FMLA Eligibility

HRQ

An employee has been with us 10 months. She is scheduled for surgery next week which may result in up to 3 months away from work to recuperate.

I realize at this time she is not eligible for FMLA due to length of service. If we allow her to take personal leave (vacation), will she become eligible 12 months from her hire date or after 12 months WORKED? She has already satisfied the 1250 hours requirement.

Thank you for any help you can give me on this!

skyrocket

If the employee has been with you for 10 months this individual would not be eligible for FMLA until they had worked for you for 12 months (need not be consecutive) or the third month of the absence. (The accumulation period is the 12-month period immediately preceding the date a leave is scheduled to begin. Paid leave time such as sick days, holidays and vacation need not be counted towards the 1250 hours.) Once the 12 month period has been achieved, you look at the number of hours worked. In this case, you said that he/she has already worked 1250 hours.

If an individual is not eligible for FMLA - you need not grant it. The fact that the individual WOULD be eligible in 2 months does not change the fact that leave is needed now.

Do you permit similarly situated employees to have a two month absence with reinstatement? If not, you are not required to provide a benefit more generous than required by law.

HRQ

We have allowed up to a month off with reinstatement for those not eligible for FML.

I understand your answer to mean the employee's unpaid time off will not count toward the 12 month eligibility requirement. Since we've allowed up to a month off for others who were not eligible, we should do the same for this individual, but not longer. If her doctor allows her to return within that one month, then we should take her back, but not necessarily the same/similar position.

I was sure that was the case, but am no expert in this area and wanted some validation. Judging from this and your other posts, you seem to know your stuff! I appreciate your help! (Please also let me know if I misunderstood in any way. x:-) )

skyrocket

[font size="1" color="#FF0000"]LAST EDITED ON 07-21-03 AT 01:20PM (CST)[/font][p]Since you have a company policy that allows one month off with reinstatement, if this person takes advantage of this, there would still be one more month before she/he completes the 12 months of employment. That interlude between company provided leave and eligibility for FMLA is the one of concern. In my opinion, you are not required to provide leave for that month and (subject to other considerations*) you are not required to hold the job open for that second month. If you terminate the employee during that second month, he/she never works for you for one year and FMLA is irrelevant.

However, if you decide to grant a second month of leave with reinstatement, this establishes a precident that you may not want to have. I think you have a real pickle here.

*I don't recall the reason for the absence (too lazy to look above) but could there be any ADA accommodation requirement here? Under ADA, accommodation can be a leave. I am NOT saying that ADA comes into play here, but it is something you much evaluate. ADA is a real stinker to try and figure out.

If I were in your shoes, I would be inclined to terminate the employee is the second month BUT I would call my labor attorney FIRST.

(ps: Leave time (vacations,sick) need not be counted to determine whether the person worked 1250 hours. Such time, however, would be counted towards the period of employment.)

HRQ

I don't think ADA applies. Or maybe it does? ADA is another area I don't have much experience with.

Employee is having some kind of neck surgery, not job related. The employee told her supervisor she will need up to three months to recuperate. Because employee isn't eligible for FML, I haven't asked for doctor's certification. Should I have asked for it?

Employee's leave begins tomorrow. We advised her in writing that if she cannot return within 30 calendar days, her employment will be terminated and she can reapply when a position becomes available. Another question: would this be voluntary or involuntary termination? I assume involuntary because the employee would return after 30 days if we let her, but we won't. Reading back, that looks like a dumb question, but I'm curious to see how you view it.

I didn't subtract out any holiday or vacation hours from her total paid hours, but it was enough over the 1250 that I didn't worry about it. That will be helpful info for other future requests, however.

We don't have a labor attorney, by the way. If we've ever needed one, it was long before I got here. Hopefully we never will need one. xpray

skyrocket

If you have more than 15 employees, ADA has to be at least considered. It is not applicable in all cases. The law is so ambiguous and subject to case by case consideration that there is really no way to know for sure. I always recommend that it be considered. That said, your duty to evaluate accommodation under ADA involves (in a small nutshell) whether or not the condition is "protected by ADA", impacts a major life function and whether the individual is able to perform essential job functions with or without accommodation.

Generally, disabilities of short duration with little or no long-term or permanent impact (such as broken limbs, sprains, concussions, appendicitis, common colds, influenza, and pregnancy) are not NORMALLY considered Protected Impairments. You mentioned "neck surgery" - so unless this is a symptom of some other condition, it would appear to be a "temporary disability" not protected by ADA.

Because this conditions does not appear to be protected by ADA and if the employee cannot return at the end of the 30 days, a termination seems in order. The termination would be involuntary. You mentioned that you wouldn't let her return after 30 days even if she wanted to. Any particular reason?

HRQ

What I meant was to put a limit on the duration of the non-FMLA leave. To make it clear to the employee that there is a limit to the amount of time we've allowed her.

For example, she exhausts her 30 day leave and we term. On the 31st day, she gives us a doctor's note indicating she can return to work. She's already been termed, however she is eligible for rehire and can reapply. If hired, she starts fresh with benefits eligibility, etc.

Does that still seem OK?

Also, your comments about ADA are interesting. Should I ask for med certification to help me determine whether or not ADA applies? I honestly have no idea why she needs the surgery, only that she needs it, and even then, I've taken the supervisor's word for it - I haven't spoken directly with the employee.

I'm so glad I have you guys for advice!

skyrocket

OK, so the reason to not let her return on day 35 would be because she was termed on day 31. No problem.

You can invite her to reapply SUBJECT TO AVAILABILITY OF A JOB POSITION FOR WHICH SHE IS QUALIFIED. If rehired, she may be eligible to reinstate health benefits without a waiting period. Some health plans will permit this - check your policy.

At this point it does not appear to be ADA to me. It appears to be a short term condition - so I wouldn't request a medical certificate for that purpose. However, if your FMLA policy does not currently require medical certification it should. And since this is not FMLA, does your "personal leave" policy have the right to request medical certification to substantiate need? If not, that should too.

I personally wouldn't pursue the ADA issue (now that you have given me enough info to believe that this IS a short term condition). But don't forget that even some short term conditions could be subject to ADA - you just cannot always assume. It depends on the person and the circumstances. As a good practice for all situations, I always advocate a consideration of the possible implications of ADA. You may want to find some good books/publications on ADA to help you with your comfort level of understanding on this very confusing subject.

You should also be certain that your state doesn't have additional laws that affect this situation. California, for example, has a greater duty to accomodate than is required by ADA.