FMLA long...
CCHR
1 Post
I just need another opinion on this situation. Would you do anything differently?
I have an employee who has been with the company for 10 months. He notified us of a serious health condition in the beginning of July. The EE was granted FMLA due to meeting all other eligibility requirements (except for length of service). We have requested medical certification however the physician has not returned the paperwork to us. EE says that the paperwork is on the way every time I ask. EE was off work for 3 weeks, and then came back on a reduced work schedule. EE is now working part time. Scheduled hours are 8-5, EE only wants to work 8 to 12. This is disruptive to his department as they are scrambling to find coverage in the afternoon.
We offered to transfer EE to a very similar position for the duration of the leave however the EE stated it bothered him (physically) to work in the other department. Both desks are identical, and duties are identical. The only difference is one position is working with customers in person (sitting down at a desk), and the other is working with them on the phone (sitting down at a desk). Needless to say, we are waiting for the physician certification to determine how to proceed.
Now, assuming the physician determines all of these things must occur- is it reasonable to accommodate these requests?
I have an employee who has been with the company for 10 months. He notified us of a serious health condition in the beginning of July. The EE was granted FMLA due to meeting all other eligibility requirements (except for length of service). We have requested medical certification however the physician has not returned the paperwork to us. EE says that the paperwork is on the way every time I ask. EE was off work for 3 weeks, and then came back on a reduced work schedule. EE is now working part time. Scheduled hours are 8-5, EE only wants to work 8 to 12. This is disruptive to his department as they are scrambling to find coverage in the afternoon.
We offered to transfer EE to a very similar position for the duration of the leave however the EE stated it bothered him (physically) to work in the other department. Both desks are identical, and duties are identical. The only difference is one position is working with customers in person (sitting down at a desk), and the other is working with them on the phone (sitting down at a desk). Needless to say, we are waiting for the physician certification to determine how to proceed.
Now, assuming the physician determines all of these things must occur- is it reasonable to accommodate these requests?
Comments
As to your question about "accomodation", the ONLY time "reasonable accomodation" comes into play is with the ADA and UNLESS he has a QUALIFYING condition, which at this point you have nothing indicating this is the case, there is no requirement that you do anything other than require him to be at his job.
Now, IF this were FMLA, you have the right to temporarily transfer him to an alternate position for the duration of the leave.
Based on your above post you have a multitude of issues...
1) You do not have any paperwork stating this EE needed off for three weeks in July. At this point I would inform the EE in writing that his absences are not excused and apply your attendance policy.
2) What do you have stating that he can only work PT? You do NOT have to allow him to RTW if he cannot fulfill all of job requirements, unless there is an ADA issue.
3) This EE states that is bothers him "physically" to work in the other department but, again, what documentation do you have verifying this?
Since you have nothing, and the EE does not seem to sense any urgency in getting you the requisite information, I would terminate this EE and inform him that he can re-apply once he is able to work.
>technicall and legally, you cannot designate the
>leave as FMLA unless ALL qualifications are met.
Linda, can you show me the reg or court precedent that backs up that statement? It would help me out if you could. I can't find anything that supports that.
29CFR825.110
a) An ``eligible employee'' is an employee of a covered employer
who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during the
12-month period immediately preceding the commencement of the leave, and
(3) Is employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite. (See
Sec. 825.105(a) regarding employees who work outside the U.S.)
(b) The 12 months an employee must have been employed by the
employer need not be consecutive months. If an employee is maintained on
the payroll for any part of a week, including any periods of paid or
unpaid leave (sick, vacation) during which other benefits or
compensation are provided by the employer (e.g., workers' compensation,
group health plan benefits, etc.), the week counts as a week of
employment. For purposes of determining whether intermittent/occasional/
casual employment qualifies as ``at least 12 months,'' 52 weeks is
deemed to be equal to 12 months.
Anne in Ohio
See my post below - that same reg also states that an employee will be deemed eligible if the employer confirms eligibility or fails to advise whether the employee is eligible.
>>Not only are you setting a precedent but,
>>technicall and legally, you cannot designate the
>>leave as FMLA unless ALL qualifications are met.
>
>
>Linda, can you show me the reg or court
>precedent that backs up that statement? It
>would help me out if you could. I can't find
>anything that supports that. [/font]
The regs actually seem to suggest otherwise. Section 825.110(d) states, in part:
"If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility...If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible."
This suggests to me that an employee will be deemed eligible for FMLA if he or she meets the criteria for FMLA eligibility OR if the employer fails to tell the employee that he or she does not meet the criteria. In the latter case (which sounds similar to the situation presented by the original poster), the employee is eligible for FMLA by virtue of not being told otherwise by the employer, and therefore the leave taken is FMLA-qualifying, and the employee would not be entitled to more than 12 weeks of leave in the one-year period.
In addition, the regulations specifically state that "Nothing in this Act is intended to discourage employers from adopting or retaining more generous leave policies." (Section 825.700(b)). Providing leave to employees who have worked for an employer for only 10 months, rather than the 12 months required by the FMLA, would constitute a "more generous leave policy." If the FMLA were enforced such that employees with only 10 months of service at the start of their leave were granted an additional 12 weeks once they reached 12 months of service, that would discourage employers from adopting the more generous leave policy, and would be in conflict with the purpose of the FMLA. Although I can see employees making the argument that they're entitled to additional leave because the first leave didn't count as FMLA leave, I think that argument is unlikely to be successful with the courts (as long as the employer actually designated the initial leave as FMLA leave, of course).
While I do not disagree that the FMLA allows an employer to have more generous leave policies, the bottom line is that the leave is NOT FMLA until ALL the requirements are met. You can call it FMLA but it is not. If an EE is provided leave prior to their being eligibile it does not matter whether you designate it FMLA or not, once they meet the eligibility requirements they are guaranteed the 12 weeks off, regardless of the amount of leave they may have taken prior to their being eligible.
You say that "I can call it FMLA but it's not." I'm waiting for a legal basis to back that statement up and to this point have found zippo. I'd love to see something if it's out there.
You also say that leave is NOT FMLA until ALL the requirements are met. Show me where it says that in the regs.