FMLA

Annie

I have an employee whose daughter has been diagnosed with a "seizure disorder". This has required trips to neurologists, EEG, CT scans, etc. Periodically the child has a seizure at school and her mother must leave work and take the child home. No one has a problem with this, but when this employee exhausts her "personal time off", I am assuming she is eligible for FMLA? (The employee has been very diligent in making up time, keeping work caught up, and all our other employees help) Although they are attempting to "control" the condition, there are no answers from doctors as to how long the emergency absences may continue. Does her FML time cycle yearly for chronic conditions, or does it expire after you use the time allotted per condition?

System

FMLA leave, for all reasons covered by the law is 12 weeks per year, which can be defined in one of four ways for an employer's POLICY and consistent practice: a calendar year; or, a fixed leave year, such as a budget year, or the year starting on the anniversary date of the employee; or, a rolling year, based upon when the FMLA is to begin -- that is count back 12 months from the start of any FMLA leave and determine how much, if any, of the 12 weeks have been used; or, the 12 month period beginning with start of the first FMLA leave and repeated thereafter.

If the employee is eligible for FMLA leave now and you haven't declared it as such, you may be putting yourself behind the "8-ball" because you will be required to regard it as FMLA leave if you try to treat her AS IF she were not under FMLA intermittent leave but not be able to count it against the 12 weeks.

Getting down to the specific issue of your employee and her situaiton, an employee who qualifies under FMLA for FMLA leave is entitled to intermittent leave for his or her own serious health condition or the serious health condition of a child in order to care for the child. Serious health condition includes incapicity from a chronic condition. You should get documentation.

CuriousG

Gene-The news may not be as stark as your post paints it. Some courts have ruled that the FMLA Reg are wrong when they require an employer to treat leave "as if" it were FMLA but not count against the 12 weeks maximum. The finding was that Congress clearly did not mean for any employee to be entitled to more than 12 weeks of leave, and therefore these regulations went beyond the authority of DOL by expanding the employee rights beyond those granted by law.

Given the lack of understanding of FMLA evident in the initial post I would recommend a consultation with either in-house, or external employment law counsel to review your policy, and the Family Medical LEave Act, as well as recent case law in this area.