Can we reduce 12 weeks when under FMLA?
aab
9 Posts
We have an employee who has not met the 12 months 1,250 thus ineligible for FMLA. She took a leave w/o pay to deliver birth and to care for her baby from June to August. The employee will be eligible FMLA on the 13th of August and we heard from the supervisor she is planning to take FMLA when she becomes eligible. That's another 12 weeks in which the supervisor is hesitant to approve because she has been gone on leave for 2 months (leave w/o pay)
Can the supervisor reduce the leave (into 4 weeks)just in case the employee requested for 12 weeks FMLA? Can the supervisor also not assure the employee that the same job/position will not be offered to the employee upon return?
Can the supervisor reduce the leave (into 4 weeks)just in case the employee requested for 12 weeks FMLA? Can the supervisor also not assure the employee that the same job/position will not be offered to the employee upon return?
Comments
>commences. If the individual has been on a non-FMLA qualifying leave
>for two months, then in order for her to go on an FMLA-qualifying
>leave, she would have to return to work. FMLA defines a "return to
>work" as 30 days (see Publication 1419, page 48). Upon satisfactory
>return-to-work, the employee could then ask for FMLA consideration
>following the birth of the child for up to the 12 week total. Keeping
>in mind that an intermittent or reduced hours request falls under
>825.201 and 825.203 (b)! Be sure to check eligibility both in terms
>of longevity and hours worked at the time of the "new" request.
Where can i see/locate Publication 1419 and 825.201 ? THANKS FOR YOUR IMMEDIATE REPLY....
On the 13th of August, when the ee becomes eligible under FMLA definition, she is entitled to 12 weeks of leave for the birth of the child, IF, the leave is taken within 12 months of the birth. You can't cut it short by trying to substitute another type of leave (unpaid) that she already took. She was not eligible for FMLA back then and you can't recapture that time as FMLA. Although you have awarded her a very generous time off without pay under your company policy, that's now sort of a catch 22 when/if she applies for 'the real thing'. And no to the second question about whether you don't have to assure her a job when she returns. You can't scramble the earlier unpaid leave into this either. The rumor that she 'plans' to take FMLA effective August 13th might prove to be untrue. She might actually need an income. A final point, about which some others will disagree; I feel strongly that the information/forms flow and approval and management of FMLA belongs to Human Resources, not supervisors. You need their cooperation up to a limited point, but the actual FMLA information exchange and decisions rest with HR in my opinion.
Our company does not give managers or supervisors the authority to make decisions covering FMLA, ADA, etc.......
I could tell you some litigation horror stories!!!!!!!!!
>"worked" 1250 hours. If she has been out on unpaid leave then she
>isn't working and hasn't accrued the necessary hours. At least that's
>my take on it.
The employee has already worked 1,250 hours however, she has not met/reached the 12 months but will be on the 13th of August. Am i right that this disqualify the employee for taking FMLA?
However, I don't agree that the ee will be eligible for 12 more weeks, unless there is a seperate condition with mother or baby. I would seek legal advice.
We had a similar situation with an employee who was just short of her year when she went out on FMLA. I believe she was 2 weeks short. When she qualified for FMLA on her anniversary date, I was advised by a Labor Law attorney that she would qualify for her full 12 weeks beginning on her eligibility date.
I agree that it was very generous to let the employee have two months of leave that she really didn't qualify for. Most people could not afford to be without a paycheck for two months and then turn around and take another 12 weeks on top of that. So..I wouldn't jump the gun until I heard from the employee.