FMLA After The Fact

KP68 · March 2004

If an employee of 6 months goes on a 6-week maternity leave and after being back for five months, inquires about the remaining six weeks under FMLA, do we have to allow her time off, as it is within 12 months of the birth and she is now eligible?
I know this question has been posed in different ways, but I wanted to put it out there for your opinions anyway.

stilldazed · March 2004

Sounds like your employee may have had an approved leave of absence, but not an "FMLA" leave since she had only 6 months' service when the maternity leave began. Remember, fundamentals of FMLA are that the employee must have at least one year's service with the same employer and 1,250 work hours within the 12 months prior to the LOA to be eligible for the Act's protection. It is true that having a baby is a qualifying event, but the employee's eligibility (length of service and work hours) are equally important. Theoretically there are no additional 6 weeks FMLA leave because there were no 12 FMLA weeks to start with. Of course, if your company designated the time off as FMLA and communicated that to the employee, you may have no choice but to follow through as if the employee is eligible, or with whatever other commitment your company may have made.

As for the second request, what does your employee mean by the "remaining 6 weeks?" Remaining from what?--prior leave of absence or potential FMLA 12-week entitlement?? If it's from the prior leave of absence, sounds as if the LOA has ended since the EE has returned to work (unless your company granted something more generous). If it's 12 FMLA weeks - 6 weeks taken = 6 more FMLA weeks, hopefully there never were 12 weeks in the first place since the employee doesn't appear to have satisfied FMLA eligibility criteria. If the second request for LOA is a new one, confirm the employee's length of service, total work hours within the last 12 months, and whether there is a qualifying event. If answers to all the questions are yes, you have an FMLA event that should be addressed.

Because you're looking at something related to pregnancy, it may be a good time to brush up a little on Pregnancy Discrimination Act.

KP68 · March 2004

It was never communicated that she would get 12 weeks, but I'm guessing she stumbled on this information on our Intranet site (but failed to catch the eligibility portion).

Balloonman · March 2004

Just explain to her how kind you were and did not let her go, just let her take an unpaid leave. Also explain that she is or isn't eligible for FMLA leave at this time.

My $0.02 worth.
DJ The Balloonman

juju · March 2004

I am seeing this differently from the previous posters, so someone please let me know if I am way off base here. Employee was out (on some type of leave, doesn't really matter what it was called since she was not eligible for FMLA). Comes back, becomes eligible for FMLA, and wants to take it within a year of birth. Now, I would not recommend this, but I don't see why she wouldn't be entitled to all 12 weeks if she wanted.

There have been several previous posts regarding similar issues. I don't see this as any different as an employee with >1250 hours and 11 months service being allowed to take a leave of absence for some type of procedure. Once they hit 12 months of service while still on the books, they are eligible for the whole 12 weeks of FMLA (NOT including the month they were allowed to take before they became eligible). The point I see is that if an employee is now eligible, and the reason for their leave still exists, why wouldn't they be able to take it?

As I said, if I am missing something, please let me know.

HRQ · March 2004

>If an employee of 6 months goes on a 6-week
>maternity leave and after being back for five
>months

Does she really qualify for FMLA? You said she worked 6 months, then another 5 months. That doesn't equal 12 months. I don't believe you have to count the 6 weeks she took off toward her seniority, do you?

KP68 · March 2004

I was using 6 months hypothetically. The REAL situation is:

*Employee hired 10/02.
*Goes on maternity leave 9/03.
*Returns in 10/03 - six weeks off (one year and 11 days after hire date).
*March 2004: Employee inquires on the "remainder" of her maternity leave - specifically the additional six unpaid weeks (to total 12 off).

I explained that she was not eligible for 12 weeks when she went out. However, I am second guessing this now - since you can take FML for birth within 12 months after.

lnelson · March 2004

"*Employee hired 10/02.
*Goes on maternity leave 9/03.
*Returns in 10/03 - six weeks off (one year and 11 days after hire date).
*March 2004: Employee inquires on the "remainder" of her maternity leave - specifically the additional six unpaid weeks (to total 12 off)."

According to these dates she was eligible for the full 12 weeks in December 2003 ( taking in account the 6wks not designated to FMLA because she did not meet the requirements) as long as she has completed not only the 12 mths but also the 1250 hrs WORKED.

It sounds as if she would like more time to bond with the baby and since the baby is not yet a year old I believe it is still within the FMLA qualifing event.

I could be off but I welcome any thoughts from others.
Lisa

Carey · March 2004

I would say she's eligible for 12 weeks FMLA now. She's now eligible and is within the 12 months of birth.

Rockie · March 2004

Correct me if I'm wrong, but I believe a company can state in their policy that FMLA taken for the purpose of the birth of a child and the "bonding" time afterwards must be taken consecutively. Our policy states this. Otherwise, you might have someone drag the bonding out a week here and a week there. However, if they don't take the entire 12 weeks off for the purpose of bonding, then the remainder of the leave could be used for a serious health condition either for themselves or the child.

marc · March 2004

Rockie has added an important point. The employer can require it to be consecutive weeks for bonding with the child. A medical service provider can set the table for the intermittent leave, and that can apply to taking care of an infant, but then it is a different purpose than bonding.

Checking your company policy with respect to requiring the consecutive leave is a good idea. It can help protect you from the small disruptions to work flow that come with intermittent leave. It is quite a hassle to put work off for a week or to require others to carry the load. And it does not make sense, usually, to train a temp for these kinds of absences. The training period is longer most of the time that the leave period.

FMLA After The Fact

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