FML usage and 1250 hours
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We had an employee who was off work back in January. He was approved for surgery, time off for recovery and doctor appointments. He has since returned to work and now the doctor has taken the employee off work again because the surgery did not work and needs to have another surgery. Does this second surgery count as a new condition/request. If so, the employee won't meet the 1250 hours.
Thank you for the help.
Comments
First, all statutory requirements for FMLA must be met.
Second, consider the FMLA calendar year. Has the employee expired the 12 month, 12 workweek entitlement FMLA year? If yes then he must meet the 1250 hour requirement. However you indicate that, the surgery, recovery and return date of the employee occured within the FMLA 12 month period.
Third, does the employee have a balance of the FMLA year allotment for his working hours? If yes then he is still entitled to those hours as FMLA time in the current FMLA year.
Fourth, since the employee had returned to work, hopefully with a signed authorization after review of his essential job duties, have a medical certification completed for this absence. The medical certification is what will determine if this is a continuation of the original problem or a new medical condition. Either way if the employee is still within the determined FMLA year and has an allotment balance the employee should qualify for FMLA.
Fifth. Is this a new request? To the extent that the employee is requesting a second absence based on a medically qualifying FMLA event. The new request, unless it has past the 12 month FMLA 12 workweek qualifying year, does not in itself reset the FMLA calendar year.
The employee has not met the 1250 hours for the 2nd surgery. He did however meet the requirement for the 1st surgery. We use a calendar year and still has FML hour available. He was released to come back to work with a couple of follow-up appointments in the future. At one of these appointments the doctor felt that the 1st surgery did not correct the problem and scheduled him for another surgery, which took place on 05/17.
I'm just trying to figure out if all of this relates to the first request or if this 2nd surgery is a new request.
The employee has not met the 1250 hours for the 2nd surgery. He did however meet the requirement for the 1st surgery. We use a calendar year and still has FML hour available. He was released to come back to work with a couple of follow-up appointments in the future. At one of these appointments the doctor felt that the 1st surgery did not correct the problem and scheduled him for another surgery, which took place on 05/17.
I'm just trying to figure out if all of this relates to the first request or if this 2nd surgery is a new request.
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It's a new request for leave for a condition arising out of the surgery. When you say this person doesn't make the 1250 hours, is that because of hours missed while out for the first surgery? If so, you may want to talk to an attorney who knows how that works in your circuit. It may be the case that the hours the employee would have worked while on FMLA must be credited for purposes of calculating leave eligibility.
Did you designate the leave for the second surgery as FMLA or non-FMLA?