FMLA + STD + Layoff = HELP

Melanie

We are a non-profit agency that has a school year pre-school program where the worker's are laid off over the summer. Typically most employees go on unemployment over the summer months. Well, I have an employee who was required to be off work by her doctor for a latex allergy. He put her off work one week prior to lay-off. She then qualified for Short Term Disability. We are currently paying her short term disability wages even though all other school year employees are only collecting Unemployment wages.

To top it off, she does not met FMLA criteria until July 24, 2001, which is her one year anniversary. Since she will be on lay-off/Short Term Disability as of July 24th, do I send her a FMLA letter even though as of July 24th the rest of the worker's are on Lay-off, or do I wait and send the letter to her once the remaining worker's return from lay-off? They don't get recalled to work until August 20th. They were laid off June 22nd. In addition, her latex allergy requires her to remain in her home because any exposure to latex which includes tires on a car, cause her a severe reaction which includes swelling and burning sensations with her skin.

Any advice? Also, are we required to pay short term disability wages while an employee should be on lay-off?

Gar

1. Since her 12th month with your firm will occur on July 24th, it seems you will have to send her the FMLA letter on or just after that date. Most importantly, be sure that, as of July 24th, she has also worked the obligatory 1,250 hours for FMLA qualification. That 1,250 hours does not include time paid but not worked (vacation, sick, holidays, layoff, unpaid leave, etc.).
2. Since you have established her one year anniversary date as July 24th, it seems to me that you consider her to be an employee during your so called lay-off period. That being the case, she is entitled to STD.

dhnyct

What about the fact that the rest of that unit is laid off during the summer? Shouldn't the lay off include this employee and then deal with any disability after the lay off period? Possiblity she's looking for a way to beat the system?

Gar

I don't see the status of the rest of the unit as having anything to do with this matter. The question to be answered is: Is the person an employee during the layoff period? Since her one year anniversary date has been established as July 24th (during the layoff period), she seems to be an employee during that period and, therefore, is probably entitled to all benefits of employment.

dwf

WHat FMLA letter are you referring to?

Melanie

To all:

I have been in Human Resources for over 5 years now, but have never worked before in a company that has annual lay-offs. They had never before had an HR person prior to hiring me about 4 months ago - so this company has always treated these employees as employees over the summer. With all that said, I'm not sure whether these employees should be considered employees or not during lay-off. They are all recalled at the beginning of the school year again, so I would assume they are employees during leave. How they are considered in the eyes of the courts? For new hire probation reviews at the end of their 90 days, if they were hired in May and work 1 month, when they start again in August they have 2 months until their probation is over.

I don't know if that helped answer your questions or not, but I'm just trying to figure out how to handle this.

The FMLA letter I was referring to was the "Employer's Notification to Employee" once they have requested a medical leave. Since she hasn't worked the 12 months until July 24th, I am assuming that I would not need to send the FMLA letter until then, however, how can I say that her leave begins while on lay-off. She technically isn't even working?

Gar

If your firm or business considers her to be an employee during the so called lay-off period, and I believe you've indicated as much, it's probably immaterial whether she is actually working or not. The way I see it, it is reasonable to start the 12-week clock when you receive verification from her health care provider that she cannot perform the essential functions of the job.

dwf

An employee who begins a disability leave and meets the two FMLA eligibility requirements after that leave has commenced, FMLA cannot be assigned. The employee must have worked (those hours actually worked) for the employer for at least 12 months and have worked for at least 1250 hours over the previous 12 months. Paid leave and unpaid leave, are not included. I don't see how your employee would qualify for FMLA.