short one month for FML

seeleyhr

Have an employee who is requesting Medical leave the first week of December which makes her a month short for FML. Her anniversary date is the beginning of January. When she hits the anniversary date in January, does she qualify at that time for FML? We calculate FML from the day it starts to count for the year not the calendar year. Haven't had this happen before. Any help would be appreciated.

LindaS

In speaking with our labor attorney regarding this very issue I was advised NOT to start counting FMLA early. Reason being that if the employee utilizes all their FMLA, they can come back and say that you designated FMLA before they truly qualified and therefore still have more time. Best bet it to take a look at what you have done in the past and if possible, give them a Leave of Absence until they reach their anniversary date, then start counting FMLA.

seeleyhr

That's what I was wondering. On her anniversary date if she is out on medical leave then I have to count from the date of her anniversay as FML? What about her health insurance? Right now she would go under COBRA, do you know if I can continue the COBRA coverage after her anniversary date or if I have to reinstate her as an employee under the plan and then she only pays the employee's portion?

irenesmsaclaims

Why is she going on COBRA?

seeleyhr

She has used all of her PTO up so will receive no wages from company, has not hit her anniversary date. She is not eligible for company paid benefits as she has not been here one year.

Don D

Are you saying she is not eligible for company insurance until she's been there one year?

To answer the primary part of your question, she is eligible for FMLA on the date when she becomes eligible, at one year of employment and she should be put on FMLA then, if out on medical leave at that time. The form where you have to indicate whether her request is approved or denied should clearly state that her approved leave under FMLA will not begin until (X) and that any medical absence prior to that date will not and cannot be counted as FML.

FMLA requires that you leave group medical coverage in place when a person goes out on FMLA. But, if she never had it, or something else in your policy already removed it prior to FML, then FMLA does not require that you reinstate it. Just that what she's on when she goes out must be maintained, unless she does not pay her part of the premiums.

seeleyhr

She has health insurance which was effective after 90 days. However, company policy states we do not pay the company's cost of the premimum under medical leave that this would go to COBRA. So, if I understand you correctly, as long as this goes into effect prior to her leaving, we do not have to reinstate her health insurance on her anniversary date of 1 year.

This is also a key position that we will be filing and she will be told that there is no guarantee of return to work once her doctor releases her so I think this should take care of all of the problems.

dbutton111

>She has health insurance which was effective
>after 90 days. However, company policy states
>we do not pay the company's cost of the premimum
>under medical leave that this would go to COBRA.
> So, if I understand you correctly, as long as
>this goes into effect prior to her leaving, we
>do not have to reinstate her health insurance on
>her anniversary date of 1 year.
>
>This is also a key position that we will be
>filing and she will be told that there is no
>guarantee of return to work once her doctor
>releases her so I think this should take care of
>all of the problems.


Does your company policy state that the company doesn't pay the company's cost of the premium EVEN IF the medical leave is covered under FMLA? If so, I'd change that immediately since FMLA requires that benefits be continued and the employee is only responsible for the employee's portion during the time deemed FML.

seeleyhr

Yes we pay if under FML but she has not been with us a year so does not qualify for FML

Don D

"This is also a key position that we will be filing and she will be told that there is no guarantee of return to work once her doctor releases her so I think this should take care of all of the problems."

If you have determined her to be a "key employee" be sure to follow closely the guidance at 29 CFR 825.217. It's very specific about who those ee's are and what you must do to advise them. 'Telling them' is not going to meet the requirement of the Act. They must be advised in writing at the point at which you respond to their request.

marc

Don is right, if she fits the definition of key EE. If not, and the position has not been filled while out pre-FML, then filling the position when she is qualified for FML would be a problem. Once FML is in play, all the provisions apply, including the requirement to give them back their job or its equivalent.

seeleyhr

I agree. This is a borderline employee anyway and I have informed them they need to make a decision on her now. Read the key employee section, she's not salary but we can't do without her position for 6 to 8 weeks. Told them if they grant her medical leave that when she hits her one year anniversary date she must begin FML. They would be better off covering their medical insurance portion if they decide to retain her.

stilldazed

You should sort the "key employee" issue quickly. Also, refer to your company's policy or past practice on leave of absence (i.e., have other employees been allowed to go on non-FMLA LOA and return to work). Finally, research your benefits guideliness, especially with respect to timing of policy cancellation (i.e., mid month, end of month, start of month).

FMLA is fairly straight forward on the key employee issue. If your employee is not technically a key employee by FMLA standard and the employee meets eligibility, FMLA will apply. If FMLA applies, you can reassign job duties but would still have to return to employee to his/her job if the RTW date is within 12 weeks.

Some benefits contracts will recognize calendar months only, some will stop/start on any date of a month. Your options for what to do about benefits should consider. For example, ours will only recognize calendar months. Thus, we cannot have enrollment/cancellation dates during the middle of a month (i.e., once a policy is in force, it must continue until the last day of a month). In that scenario, coverage that would be in effect in December can not be cancelled before 12/31. A mid January LOA start date could conceivably be 2 to 3 weeks afterward. FMLA protection might apply to insurance in January, which (by our contract) would require a 1/1 or 2/1 effective date, depending on circumstances. Kind of complex, but the answers get a little easier to sort give some of the specifics.

Finally, seems like you mentioned there is no PTO or other paid time off options for the employee to take, but what has your company done in the past with employees who requested short leaves of absence but who were not eligible for FMLA? Do you have a policy that potentially allows employees to return to work in the absence of FMLA protection? That will also make a difference.