Same EE, new problem...HELP

NeedCoffee · April 2006

I recently posted about a possible termination that we were having trouble with. Now I have a rather stupid question, but a really important one given the time restraints.

Can anyone tell me whether this statement is true? I'm a newbie, and trying to make sense of it all.

"If an employee does not request leave, whether named as FMLA or otherwise, he cannot later come back and accuse the employer of violating his FMLA rights."

The employee in question was simply absent and never requested leave, but he was out for 3 consecutive days for a serious injury. I am assuming that if leave in any shape or form was never requested, he doesn't have an FMLA claim, right?

HRCalico · April 2006

NeedCoffee, no question is stupid! We were all new once, and even as we become not-so-new, there are still things we've never experienced before. That's the great thing about the forum - we can learn from each other's experience without having to go through it ourselves.

Actually, it is our responsibility as employers to designate leave as FMLA, so your statement is not necessarily true. Look at it this way - I had an EE who was in a serious car accident. He lost several members of his family, and he suffered broken bones and a head injury. He still hasn't "asked" his leave to be declared as FML, but of course as soon as we were notified, I prepared the paperwork and sent it out.

[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.302.htm[/url]

The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The employer should inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken. In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave (see Sec. 825.305).

Also in my example, the employee had no way of forseeing the leave. You can retro-designate leave as FML if you did not know the reason for the leave until the employee returned, though. Oh, here it is, but I didn't know the 2-day thing:

[url]http://www.dol.gov/elaws/esa/fmla/faq.asp[/url]

Q: If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?

In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee’s return to work.

NeedCoffee · April 2006

Thanks HRCalico!

I am still stuck on this one, however, because it was just a normal absence - the employee never asked to not come in, just didn't show up for work and when the ee called in, he just asked to "let his supervisor know he won't be in today." When the ee felt better, he came back to work. His doctor won't even write him a note for the 3 days off, because the doctor does not think he was ill enough to be home.

He still has not asked for the days off to be considered anything other than an absence due to illness. This is problematic because he has now violated our absence policy, and I don't want to go down the termination road if his actions actually qualified for FMLA. See my problem?

HRCalico · April 2006

I do see what you mean, but it's easier than you think. Part of FMLA is a doctor's certification that it is a serious health condition. Since the doc won't even write a note, it is NOT FMLA. Apply your attendance policy as you would to any other employee (consistently, of course), and you're fine!

LindaS · April 2006

My first question is whether or not the EE called in in accordance with your attendance policy. If he did not, regardless of potential FMLA implications you still have the right to require EEs contact the company in accordance with your policy and failure to do that allows you to apply your attendance and discipline policies accordingly.

As for the fact that the doctor will not provide an excuse for the days off, if the EE is unable to provide a medical certificatin verifying a serious health condition, it is NOT FMLA and your attendance policies would then apply.

NeedCoffee · April 2006

Thanks again guys. I feel much better about this now! Hopefully this will all end well.

I think this forum is going to be a wonderful tool - thanks for the support!

VS · April 2006

You stated that the absence was three days. To be FMLA, one has to be out MORE than three consecutive days. I do not see these three days as FMLA qualifying.

jimbomt · April 2006

follow-up question, since we are not large enough to be covered by FMLA. If you run FMLA concurrent with sick/pto leave and the leave is < 3 days, you can count that as FMLA, right?

VS · April 2006

With our policy, we would count less than 4 days (FMLA)to fall under our sick policy. At the fourth day, and FMLA eligible, we would then count under FMLA and count concurrently with sick days going forward. BUT, you knew there had to be a "BUT", if the medical condition is deemed FMLA and the med cert retros the condition back to the first day of absence, then we would count the first day concurrently. Keep in mind that most of the time, the doctor retros the absences as FMLA back to the first day missed. But we have had otherwise as well. Did I confuse you?

Caroliso · May 2006

>You stated that the absence was three days. To
>be FMLA, one has to be out MORE than three
>consecutive days. I do not see these three days
>as FMLA qualifying.

I have a question about the 3 consecutive day minimum rule, as I went to look for it and it didn't jump out at me in my reference materials.

It could conceivably conflict with a request for intermittent leave -- is that considered a different category?

HRCalico · May 2006

Yes.

Same EE, new problem...HELP

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