FMLA question
SMace
1,481 Posts
Allsteaks is right, I hijacked the thread. I would like someone to counter, if they can, the answer below from missk. I don't think it can be done, but would like to see someone try. We do what she explains in the last paragraph. I've never been 100% comfortable with it, but can't find anything to say you can't count FMLA early. I've heard the reasoning why you can't, but have not seen any reg or court case that supports the reasoning.
>>Not only are you setting a precedent but,
>>technicall and legally, you cannot designate the
>>leave as FMLA unless ALL qualifications are met.
>
>
>"Linda, can you show me the reg or court
>precedent that backs up that statement? It
>would help me out if you could. I can't find
>anything that supports that.
The regs actually seem to suggest otherwise. Section 825.110(d) states, in part:
"If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility...If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible."
This suggests to me that an employee will be deemed eligible for FMLA if he or she meets the criteria for FMLA eligibility OR if the employer fails to tell the employee that he or she does not meet the criteria. In the latter case (which sounds similar to the situation presented by the original poster), the employee is eligible for FMLA by virtue of not being told otherwise by the employer, and therefore the leave taken is FMLA-qualifying, and the employee would not be entitled to more than 12 weeks of leave in the one-year period.
In addition, the regulations specifically state that "Nothing in this Act is intended to discourage employers from adopting or retaining more generous leave policies." (Section 825.700(b)). Providing leave to employees who have worked for an employer for only 10 months, rather than the 12 months required by the FMLA, would constitute a "more generous leave policy." If the FMLA were enforced such that employees with only 10 months of service at the start of their leave were granted an additional 12 weeks once they reached 12 months of service, that would discourage employers from adopting the more generous leave policy, and would be in conflict with the purpose of the FMLA. Although I can see employees making the argument that they're entitled to additional leave because the first leave didn't count as FMLA leave, I think that argument is unlikely to be successful with the courts (as long as the employer actually designated the initial leave as FMLA leave, of course). "
>>Not only are you setting a precedent but,
>>technicall and legally, you cannot designate the
>>leave as FMLA unless ALL qualifications are met.
>
>
>"Linda, can you show me the reg or court
>precedent that backs up that statement? It
>would help me out if you could. I can't find
>anything that supports that.
The regs actually seem to suggest otherwise. Section 825.110(d) states, in part:
"If an employee notifies the employer of need for FMLA leave before the employee meets these eligibility criteria, the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. If the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility...If the employer fails to advise the employee whether the employee is eligible prior to the date the requested leave is to commence, the employee will be deemed eligible."
This suggests to me that an employee will be deemed eligible for FMLA if he or she meets the criteria for FMLA eligibility OR if the employer fails to tell the employee that he or she does not meet the criteria. In the latter case (which sounds similar to the situation presented by the original poster), the employee is eligible for FMLA by virtue of not being told otherwise by the employer, and therefore the leave taken is FMLA-qualifying, and the employee would not be entitled to more than 12 weeks of leave in the one-year period.
In addition, the regulations specifically state that "Nothing in this Act is intended to discourage employers from adopting or retaining more generous leave policies." (Section 825.700(b)). Providing leave to employees who have worked for an employer for only 10 months, rather than the 12 months required by the FMLA, would constitute a "more generous leave policy." If the FMLA were enforced such that employees with only 10 months of service at the start of their leave were granted an additional 12 weeks once they reached 12 months of service, that would discourage employers from adopting the more generous leave policy, and would be in conflict with the purpose of the FMLA. Although I can see employees making the argument that they're entitled to additional leave because the first leave didn't count as FMLA leave, I think that argument is unlikely to be successful with the courts (as long as the employer actually designated the initial leave as FMLA leave, of course). "
Comments
"the employer must either confirm the employee's eligibility based upon a projection that the employee will be eligible on the date leave would commence or must advise the employee when the eligibility requirement is met. "
The key here is "eligible on the date leave would commence." To me this states someone can request FML and have it approved prior to being eligible, as long as leave commences on or after the date he/she WOULD be eligible.
Going back to your point, however, it still does not prohibit an employer from adopting a more generous leave policy. The danger of setting a precedent occurs when you grant a request for leave for an employee who hasn't reached eligibility - are you going to grant everyone's request then? Why have eligibility restrictions at all?
However, this does [i]not[/i] mean that an employee who is granted leave prior to his eligibility will be automatically entitled to an additional 12 weeks of leave once he becomes eligible (which is really the main concern that an employer would have). In fact, several courts have held that where an employee receives 12 weeks of leave as required by the FMLA, that employee is [i]not[/i] entitled to additional weeks, even if, for example, the employer failed to notify the employee that the leave constituted FMLA leave.
For example, in McGregor v. Autozone, Inc., 180 F.3d 1305 (11th Cir. 1999), the Eleventh Circuit Court of Appeals invalidated the DOL regulations that provided that if an employer failed to give notice that leave was FMLA leave, it could not be counted against an employee's 12-week FMLA leave entitlement. The court balked at the suggestion that an employer could be required to grant an additional 12 weeks beyond 12 weeks already granted just because the employer failed to notify the employee that the initial leave constituted FMLA leave. The court held that because the purpose of the FMLA is to limit the leave entitlement to 12 weeks, and the Act in no way suggests that the 12-week entitlement may be extended, the regulation that would result in the extension of leave "was contrary to the statute and therefore invalid and unenforceable." The Eighth Circuit held the same in Ragsdale v. Wolverine Worldwide, Inc., 218 F. 3d 933 (8th Cir. 2000), noting that enforcing such a regulation would operate contrary to the Act's purpose not to discourage employers from adopting leave policies more generous than those provided by the FMLA. There are some district courts that have upheld the DOL regulations, but these decisions are not binding on any other court, and they are in the minority.
I don't have enough time to look into this further, but I know that at least the Second Circuit Court of Appeals has held that in an FMLA claim, the focus should be on whether the employee received all of the substantive benefits he was entitled to, rather than on whether certain regulatory provisions were violated. In Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999), since the employee received his 12 weeks of leave, the fact that his employer didn't notify him that his leave was FMLA qualifying didn't give rise to a violation of the FMLA. What mattered was that the employee received the 12 weeks to which he was entitled.
I think similar reasoning would apply to a situation where a person was granted FMLA leave prior to achieving the FMLA's eligibility requirements. Since the FMLA is meant to establish a minimum [i]and maximum[/i] requirement of 12 weeks of leave, if an employer's policies are generous enough to provide those 12 weeks of leave when an employee has worked 10 months rather than 12 months, it seems unlikely that Congress would intend to punish that employer for its generosity by forcing it to grant 12 weeks in addition to the leave already granted.
The one risk I see with this approach is that an employee could argue that he is entitled to 12 weeks of "job-protected" leave, and since leave granted prior to FMLA eligibility would not be subject to the protections of the FMLA, he would be entitled to the additional weeks of protection. Though the Act itself merely says that an eligible employee is entitled to "a total of 12 workweeks of leave during any 12-month period" for a qualifying condition, so an employer could argue that an employee looking to extend his leave already received 12 weeks of leave in a 12 month period, because of the leave provided prior to eligibility.
So I think it's clear that the safest thing would be to just limit provision of FMLA leave to those employees who meet the FMLA's eligibility requirements, but given the caselaw concerning the FMLA, it's certainly not clear that an employee "automatically" becomes entitled to 12 weeks in addition to what an employer has granted under a more generous leave policy - there are several situations where courts have refused to extend leave entitlements beyond 12 weeks, even where the regulations would dictate that result.
Well, glad we got that cleared up (ha, ha). Hopefully the new FMLA regs will shed some light on this issue!