Eligible for FMLA ??

Pistol

Hello:

Here's my situation. Employee's hire date was 4/2/2001. She is pregnant. Her doctor placed her on bed rest until delivery in early April. Her first day out was 3/5/02. Although she is eligible under the MAssachusetts Maternity Leave Act,( 8 weeks of unpaid leave ) is she eligible to be covered by FMLA ? She did work more than 1250 hours since her hire date however has not completed a full year of service.

If she is not eligible, it is becuase she did not meet the 2 requirements since she went out on 3/5/02, correct ?

If she is eligible, when does her FMLA clock start ticking ?

System

Pistol
It is my understanding that an employee has to have worked for an employer at least twelve months and at least 1250 hours during the preceding twelve months before he or she is eligible. So, she would not be eligible for FMLA until April. Hope this helps.

Pistol

But would I then start recording FMLA time out in April for her leave ? If her first day out was 3/5, and she's eligible under MMLA for 8 weeks unpaid, and FMLA and MMLA can run concurrent, woudl she have ti return to work 12 weeks from 3/5/02 ?

B ut

Susan Fentin MA

The short answer to your follow up question is "yes," but some explanation is in order. There are two separate issues here. Although there is a divergence of opinion on her eligibility for FMLA leave, the concensus appears to be that she is entitled to 12 weeks of leave when she becomes eligible, i.e., when she has been employed a year so long as she has worked the minimum 1250 hours. So, if she gives birth in April and her anniversary date is 4/5, she becomes eligible for 12 weeks of FMLA to care for her newborn child on 4/5. That leave must be taken within 12 months of the birth of the child or it disappears. You may or may not require her to take this leave concurrently with any paid leave, such as sick leave or vacation leave, but if you do so, it has to be in a written policy or else it's up to her.

That's the FMLA. Under the MMLA, she is entitled to 8 weeks of leave for the birth of the child, but not substantially before or after. In this case, you have allowed her to take MMLA for the 4 weeks (plus or minus) before the birth. If she gives birth as scheduled in early April, she will run up to her eligibility for FMLA and then the second 4 weeks of MMLA can run concurrently with her FMLA, but she will still be entitled to take the 12 weeks of FMLA. The other difference is that under the MMLA, you cannot require her to take paid leave concurrently with her MMLA leave, although many employees choose to do so.

I hope this answers your question. If you have any further questions, you can contact me directly at [email]sfentin@skoler-abbott.com[/email]. Good luck!
Susan Fentin, Associate Editor, Mass Employment Law Letter