Employee was already given notice

scantey · October 2003

I have an employee who was actaully part of a large layoff we recently had. We gave the employees a 90 day notice so they are working through the end of the year. One of the employees is 8 months pregnant and is ready to go out on leave but will not be returning before the end of the year. Should I still go ahead and put her out on FMLA although she has her notice stating that her posion has already been eliminated?

POPEYE · October 2003

I can't speak for the laws of the Great State of "Arnold", but officially this EE just like all of the rest are still on your payroll until the agreed upon time for the layoff. My opinion is that you provide her with the rights of her FMLA entitlement including insurance coverage if applicable, just as you would anyone else affected by the layoff.

scantey · October 2003

Thank you for your feedback- Do you think I should still put in the letter that she is eligible for 88 days (knowing that the insurance will end in less than 60)? Do you see this as being a problem in the future?

Don D · October 2003

Yes, you should treat the FMLA absence as if no layoff were going to occur. Follow the requirements of FMLA precisely and when she becomes affected by the layoff, follow the layoff conditions precisely from that moment forward, without regard to FMLA from that point. The only thing I might do differently would be with her letter that you send all people who are on FMLA. I would add a final paragraph referencing the impending reduction in force, and her inclusion in it, so that there could be no misinterpretation or argument that you had promised she would survive the layoff because of her FMLA status. Also consider this: If she were to be rehired a month after the reduction, the FMLA absences while employed would be counted against her annual allowance and so would her time with the company in the prior one year period.

Employee was already given notice

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