Extending FMLA leave

KStater · January 2004

I have a problem similar to TinaL's post on 1/12/04. We have an employee who is about to exhaust his FMLA, non-work-related degenerative injury, and his possible release to full duty is way down the road, if at all. Our past precedent has been to term after 12 wks if the person does not have the rtw release. However, now my boss decides she doesn't like that and wants to develop some sort of medical leave policy JUST for people who have run out of FMLA but still have accrued paid leave on the books. I asked did she want an unpaid personal leave policy that would apply to other situations, she said no, just something to keep someone who has exhausted FMLA from being termed.
I'd like some feedback from you guys re: the pros and cons of such a policy. I think it's a bad precedent to set and starts to bump into that "regarded as" ADA thing; can I get a witness? I'd also like some examples (if you don't mind sharing) of medical leave policy language I could use to craft the kind of policy she seems determined to have. Thanks!
P.S. If there's another thread on the forum that touches on this, please let me know!

mushroomHR · January 2004

Our company doesn't terminate anyone who has gone beyone their 12 weeks of FML because "we don't want to lose good employees". I'll be interested to read the replies to this post which may give me some ammunition when I run into this problem myself. Our management just doesn't get the gist of family and medical leave and it seems a waste of my time to even go through the motions of granting it. Just venting a little.

marc · January 2004

I am a bit curious about your comment that the EE still has accrued leave on the books. Does that mean they had more than 12 weeks of paid leave at the time they went on FML? If so, I am amazed! This must be a very long term employee and you have no limits on rolling over unused sick and/or vacation leave, or you have not been making them use their paid leave while on FML.

Either way, your company takes a generous approach to these situations.

Keep in mind that the FMLA sets minimum guidelines. If your company wants to exceed those guidelines, it certainly may do so. Keep in mind you are setting precedents that you must follow consistently with all of your EEs. Before doing this, you should carefully analyze the impact such an action may have on your companies bottom line and your staff. Having to keep jobs open for returning EEs and spreading the work around or hiring temps can all have serious repercussions to your business.

This decision is a biggie.

KStater · January 2004

Yes, this is a long-term employee who has been using his sick leave, but still has vacation leave available. And you're right, this company is very generous about rolling over sick leave - the vacation leave rollover is about two weeks.
I do have serious reservations about the wider impact of this policy, and I'm afraid my boss only sees it as an opportunity to help this particular employee. However, the other employee that we terminated after 12 weeks was a long term employee as well, with plenty of vacation leave available. There was no impulse to create a new policy at that time. Things that make you go hmm....

marc · January 2004

That is the sort of inconsistency that can lead to writing some big checks at the direction of our civil justice system.

It doesn't have to be fair, but it should be consistent.

Don D · January 2004

Every policy has an effective date. There's nothing wrong with starting a policy that, upon inception, changes something that was handled differently prior to the policy. Don't all policies do that? If he wants this policy in place, it has to start sometime. And if not now, then when. It will forever impact the last person similarly situated prior to policy implementation, no matter when you start it. The only 'blind' way to do it is to project a point in time out in the distance and say that's the implementation date. It might be more defensible.

What would he be doing if the Federal government had not blessed us with FMLA eleven years ago?

Leslie · January 2004

Like you, we only require that FMLA folks use sick time. They don't have to use their vacation. Unlike you, after 12 weeks, we term and pay out the vacation.

I agree with Don. If your boss wants to start such a policy immediately that employees with vacation time on the books can extend their leave until such time as the vacation is exhausted, fine. But she really needs to understand the precedent she is setting. My question is what will she want to do in the future upon expiration of FMLA if it's a "bad" employee with lots of vacation time left or a "good" employee with no vacation time available?

KStater · January 2004

I appreciate all the comments, they've been very helpful. I understand what Don is saying, so starting a policy now is not really bothering me anymore. What's bothering me is the point Leslie just brought up. I'm not sure my boss understands the precedent setting thing. Someone suggested that I run a list of all our employees that currently have more than 12 weeks of leave and show my boss all the "good" and "bad" employees that will be able to take advantage of this policy change. To answer Leslie's question, I think right now, her plan is to extend the leave for up to 30 days to people whether they have paid leave or not, based on medical cert. that leave is still needed.
That lead's me back to TinaL's query; at the end of that 30 days that person still might not be able to return, so we'll still be faced with terming them. So is the extension a good practice?

vmiller MO · February 2004

I hate to interject additional considerations, but any analysis requires you to consider the applicability of the ADA and/or MHRA. If this employee is "disabled" within the meaning of these statutes, then you will have to consider "reasonable accommodation." It is possible that a "reasonable accommodation" might be extending the leave of absence.

In addition, there is nothing that necessarily prevents the company from granting a leave of absence to this individual. The problems develop down the road when others want a similar leave. Your decisions in that regard will be scrutinized under the traditional civil rights analysis, usually disparate treatment.

How "nice" your company wants to be is limited only by how much risk your company wants to accept.

Good luck.
Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]

njjel · February 2004

Another question I have is if the policy is 'changed' now for this person doesn't the company risk a law suit from the person who was treated differently in the past? And how recent was that?

Don D · February 2004

Every policy has an effective date. There's nothing wrong with starting a policy that, upon inception, changes something that was handled differently prior to the policy. Don't all policies do that? If he wants this policy in place, it has to start sometime. And if not now, then when. It will forever impact the last person similarly situated prior to policy implementation, no matter when you start it.

NJJEL: If that were the overriding concern, we'd never change or implement a policy out of concern or fear for the last person who had a different policy applied. With proper and considerate notice to employees and responsible presentation of a new policy and timely rollout, things simply must have an effective date.....and we move on. Suits and charges typically result from the perception of misapplication of the same policy in a dissimilar fashion.

psrcello · February 2004

Basically, I agree with Don D on implementation of policies. However, if you're not vigilant, you may find that wishy-washy management might want to implement a new policy to fit each individual employee situation!

Case in point - we're a union plant with a rather loose contract. We offer 12 weeks of FMLA, a 26-week short term disability plan, and a "leave of absence" clause in the contract which allows management to grant a leave of absence "not to exceed two months, except in case of serious illness or election to union office".

Employee #1 (marginal employee) - runs out of FMLA leave, still has 14 weeks of short term disability. Decision (supposedly final) - terminate employee when STD runs out.

Employee #2 (super employee) - exhausts FMLA and STD, is granted indefinite leave of absence protecting seniority until whenever he's ready to return to work.

Employee #3 (sub-marginal employee) - close to running out of FMLA, management wants this employee terminated at end of 12 weeks, before STD runs out.

Keep that in mind when you initiate a new "policy" - make sure that management understands what it's signing off on, and that it's NOT a "case-by-case" basis!

Carey · February 2004

Our disability leave policy allows a leave for up to one year as long as the ee's doctor certifies it. This obviously goes way beyond FMLA and usually the ee's PTO bank. We have many ee's on shaky ground go to a doctor and get put on disability. At that point, we don't terminate until they're released to return to work or get to the one year mark. And at that point we have to look at ADA and possibly extend the leave as a reasonable accommodation. The downside is we still have the ees on the books, but after the FMLA period, aren't paying out anything for them. It is a headache to manage and ees figure out how to use the system to their own advantage.

stilldazed · February 2004

This is interesting dialog. My company is currently harvesting the fruit of an overly generous approach to LOAs--basically open ended for whatever length of time the employee has medical certification. I've seen examples of a handful that went over a year and were eventually terminated (for no reason other than they had not worked in such a long time. Our policies are not written that way, but lack of scrutiny over a 3- to 4-year period through 2001 led to the practice, and the practice basically became policy. We have gradually tightened up the precendents somewhat with a lot of extreme effort, mostly through supervisory education about FMLA, but we still have active examples of overly generous LOAs. My expectation within the next several months is to revamp existing LOA policies and tighten the belt further. With distribution of an updated policy, we will have a defined date, and the updated policy will be valid catalyst. I don't think we'll ever get to termination as soon as FMLA expires, and I'm not sure that would be appropriate. But I am interested in implementing something that stops the general approval of LOAs that go on for months. The open-ended stuff can be chaos (costly), lends itself to inconsistent application (risky), encourages employees to abuse a privilege (costly), and offers very few mechanisms for HR to check what supervisors are actually doing (risky).

Because of the steps we plan to take, which sounds like the opposite of what you are trying to do, I'm interested to know how some other employers are managing LOAs that exceed or don't qualify for FMLA protections.

Extending FMLA leave

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