Designate FML two months into w/c leave?

HRQ

I learned recently (from the Forum) that FML can run concurrently with W/C leave. An employee (different from my other post below) has been on W/C leave for two months, and she just called me to say she is now having surgery and doesn't know when she'll be back to work. An updated doc's note is on its way.

Is it OK to start FML NOW? I know I can't do it retroactively, but it sounds like she'll be out for a while and I need to get control of how long she remains an employee.

What would be appropriate wording to explain why we are starting FML now as opposed to when I SHOULD have started it? (when the leave actually began)

Of course, moving forward I'll designate all w/c leave as FML as soon as the leave starts.

Margaret Morford

I'd change your policy to say that FMLA will now run concurrent with WC and then certify the individual.

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

skyrocket

A US Supreme Court ruling (2002) eliminated the requirement by the US Department of Labor that Federal Family Leave MUST be designated in writing within 2 business days. What this meant in some states is that the written designation at the time of leave was no longer required.

The court said:
"...The regulation punished the employer for its failure to designate leave regardless of whether the employee relied upon that failure or suffered any hard as a result of it..."

The court rejected the DOL's argument that notification was required because it would require an employer to provide an employee with additionl leave (in excess of the 12 weeks under FMLA).

Case was Ragsdale v. Wolverine Worldwide, Inc. No 00-6029 (US March 19, 2002).

Note: In California (and perhaps other states)notification at the time of leave is still required because we have other leave laws concurrent with FMLA. You can, of course, be more generous than the law allows.

Don D

>
>What would be appropriate wording to explain why we are starting FML
>now as opposed to when I SHOULD have started it? (when the leave
>actually began)
>
I would say that if you decide NOT to retro this person's leave, only to start it now, but decide to include mention in your policy that they will run concurrent from now on; then I would send notice (certified mail) that, if certified, the leave will run concurrent with workers' compensation leave effective upon certification. I actually thought the Wolverine case related more to an oversight in the designation, not to an employer who didn't have that as a policy and now wants to install such policy. I'm not sure that Wolverine would apply in that situation. How about it attorneys?

skyrocket

Actually DonD, it WAS related to a failure to designate a leave as FMLA and not the absence of a policy. The employee in question was on leave for 7 months (of which 12 weeks was considered FMLA). They hadn't notified her of this fact and she sought additonal leave under FMLA. I am only reading from a summary provided by the International Foundation of Employee Benefit Plans but have discussed this case with our labor attorney here in California. She cautioned that in California we have other leave laws that still require the written designation at time of leave.

I too would be interested what attorneys outside of California advise their clients...

HRQ

It's probably obvious that we do not currently have a policy stating FML will run concurrently with W/C leave. x;-) Does anyone have a sample you could email me? Sounds like I need to get my policy in line before designating the employee's leave as FML.

I appreciate whatever you can offer.

skyrocket

I think you can just use a short sentence - something like

any period of time that can be considered FMLA leave will be considered FMLA - inluding absences for work-related injury or illness.

Don D

Right. A complicated or lengthy explanation of concurrency will only complicate things for the company or perhaps box them in if there is some sort of challenge down the road, as to what this or that meant. A simple sentence should be sufficient: "Periods of absence falling under FMLA, Workers' Compensation and ADA will be applied and tracked concurrently as determined by the company." The verbal follow-up explanation would be, "If you're out on Comp, you will be also on FMLA when it's certified as such. If you're absence is covered by the ADA, you will concurrently be on FMLA." When we have a comp situation or ADA situation necessitating absence (don't most?), we also issue the FMLA paperwork, and in most cases also issue our company STD paperwork, if it would kick in. The idea here is to protect the company. The employee already enjoys the several protections offered by comp, fmla and ada. The company should protect itself by ensuring, at a minimum, that the employee does not 'stack programs'. When we allow that to happen, we have, for example: eight weeks of partially paid comp absence, followed by return to work after an unpaid ADA accommodated additional two weeks off, followed later by a potential 12 weeks off under fmla, probably paid under STD. Concurrently running these programs does nothing other than offer that small degree of leverage to the company. The only consequence of doing this is that it allows the company to manage or somewhat restrict total days of absence. Disclaimer: None of these remarks applies when contradictory or more generous state laws kick in.

HRQ

Thanks for all the help. This is why I love you guys! (You know, in an HR kind of way...)