FMLA/LOA
Pat Dalton
12 Posts
In our hospital, we have a policy stating that when a person has exhausted FMLA (12 weeks) and is put on LOA (if continued time out is required), their job is no longer secure and may be filled, although they would not be terminated from employment until they had been out a total of 6 months. We have an ADA Sub-Committee that reviews each case to determine whether ADA may apply. In those cases, we would hold the position and re-evaluate periodically as we obtain up-dated medical information. HOWEVER, let's assume for the sake of this question that the person does not qualify under ADA, is placed on LOA, and his job filled. Let's say that 2 months later when the new year turns (we use Fiscal Year), he is still out. Is he qualified for another 12 weeks FMLA assuming he has worked 1250 in the previous 12 months? We had taken the position that if on LOA, he was not eligible for another FMLA. Recently, we were told that this is not the case and that he WOULD be eligible for another 12 weeks FMLA. IF HE IS....what is our obligation to him? Certainly we can't guarantee his former position since it was filled. What do others of you do with this type of situation? x:-/
Comments
How have you counted the time in the past?
Is my understanding correct?
If so, FMLA only requires reinstatement to the same or "equivalent psoition" the employee held when the FMLA leave commenced. Since the employee did not go on FMLA leave directly from the position, it seems to me, given other FMLA regulations, that the employee isn't entitled to return to the same position. But I would try to return to an equivalent position. That result could be more "sustainable" if legally challenged than the next possibility. You may be able to argue, that the employee isn't even entitled to that, but merely to restoration to a job. For your actual situations which involve leaves as reasonable accommodations under ADA that subequently turn into FMLA, take a look at 29CFR826.16(d).
ADA would seem to require that, as part of the original reasonable accommodation for the leave, the employee be returned to a vacant job that the employee can perform with or without reaonsable accommodation. There is no requirement under ADA, that I can see, that a job be held open for the employee who is on ADA leave as a reasonable accommodation. A comparable or equivalent job may be appropriate. But for a better reading on that issue, you need to talk to an attorney versed in ADA issues.
In your hypothetical, if the employee wasn't on any "protected leave" status, such as leave under ADA reasonable accommodation, when the FMLA leave began and did not take leave directly from his position, then you could argue that there is no right to return to the original job or even any equivalent job. But that's hypothetical. You would probably need an actual court ruling to develop a guide because it doesn't appear that the FMLA regulations directly contemplate the situation.