FMLA Leave for employee only with company 11 months

4509666

We have an employee who has been with the company for 11 months and has more than surpassed the 1,250 hour requirement for FMLA. This employee has entered rehab and will be returning to work soon. We have held his position for him and will give him his job back. My question is can I count his leave against his FMLA leave for the year since he has not been employed a full year. If at some point in the next year he enters rehab again can I count this past time as part of his 12 weeks?

SFbay

No, I don't think so ... because one of the
requirements for an employee to be eligible for federal FMLA is to have worked for the
employer for a total of 12 months.  It doesn't look like your employee meets that requirement,
so wouldn't be eligible for FMLA. 

A few other things to keep in mind. 1. Check with your state FMLA law (if it has one). 2. The Americans with Disabilities act protects alcoholics and recovering addicts. 3. The Department of Labor says: "In most
situations, the employer cannot count leave as FMLA leave retroactively.
Remember, the employee must be notified in writing that an absence is being
designated as FMLA leave. If the employer was not aware of the reason for the
leave, leave may be designated as FMLA leave retroactively only while the leave
is in progress or within two business days of the employee's return to
work.”

sdiconza

I agree with SFBay's answer above, but if the employee does work for more time and is eligible in the future, you need to do all the notice and accounting for time that FMLA requires.