FMLA Eligibility
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I have an employee who had a baby on 4/23/08. She will have one year of service on 5/29/08. She has been off since the birth of her baby (5 weeks so far), and was not FMLA eligible then, due to less than a year of service. Since she will have one year of service tomorrow, is she eligible now for the FMLA of 12 weeks? She now wants to take off 7 more weeks to equal the 12 weeks of FMLA. Is she eligible, or is it date of the birth of baby? I am confused. HELP!
Comments
The aggressive attorney will tell you that FMLA eligiblity is determined at the start of the leave and, therefore, she is not entitled to FMLA unless she returns to work and the requests it (and meets the criteria).
SHRM and most others agree that her FMLA leave begins the day the employee becomes eligible in situations like this.
When I faced this situation about 18 months ago, I did considerable research on it and decided that the aggressive route was not adequately demonstrated to be very safe. That may be different now, but it wasn't worth it to me then and I would continue to grant FMLA mid-leave today.
I agree with TXHRGuy. I would and have granted FMLA when the person is eligible for it. If she wants to take 7 more weeks, I would grant her that request. Make sure that she fills out all the applicable forms, but like every other employee is required to do.
What if she were to want 12 weeks once she became eligible-would we need to grant that despite the fact that we gave her 5 weeks off when ineligible? Or should we limit it to 7 more weeks?
Did you put her out on a leave and move her to COBRA for benefits?
I'm curious as to how this administratively would work. So you move the employee to COBRA for a month, then you have to "reactivate" them as an active employee on FMLA so their COBRA stops and their regular benefits start again. Any disagreement?
I wouldn't put the person on COBRA. I would do the same thing with someone on a LOA as someone on FMLA. I would give them the information on what they need to pay for their portion of the premiums and have them pay you. If they don't pay you their portion then you can try to move to COBRA (based on your state law).
Actually, if someone goes out on leave that is not protected by FMLA, you can put them on COBRA continuation in accordance with whatever policy you have on putting inactive employees on COBRA continuation. When, in the course of the leave, the person's leave becomes FMLA, nothing changes: still on COBRA continuation. When they return from leave, they have a right to whatever they were on before their FMLA leave: COBRA continuation.
Not everyone supports continued benefits on non-entitlement leave. For those who end coverage and offer COBRA continuation to their employees on unprotected leave, they can certainly continue to do so and have no obligation to return a person to regular coverage even if the leave becomes designated FMLA leave mid-stream. The key is to have a written policy about the circumstances under which an inactive employee is converted to COBRA continuation and following that policy.
There's two parts to this.
On the one hand, out of benevolence or concern for Corporate reputation, you could return people to normal coverage upon returning from FMLA (preferably under a written policy) if your provider will allow you to do so.
FMLA's intention is to ensure that people on FMLA leave get upon return what they had when they left. On the technical merits of the matter, FMLA requires you to return a person to the status they had before their FMLA leave. In the context of OP's situation, EE went on non-FMLA leave but their leave is predicted to become FMLA designated while in progress on the same occurrence of leave absence. After some passage of sufficient time, if the EE's benefits ceased and they were given the right to continue under COBRA, that is their condition prior to the commencement of the FMLA leave. When FMLA leave ends, the employee has a right to what they had before the FMLA portion of the leave, which is COBRA continuation rights, not normal coverage. This is pretty well established but it does not mean that you can't put the person back on normal coverage, it just means you are not obligated to do so. Keep in mind that it's best to have a written policy about the conditions under which you drop someone from coverage and that it has nothing to do with the type or cause of leave.