FMLA Eligibility

CindyG

Our corporate office in Maine employs just under 50 employees as of recent. We have a satellite office in California. One of our employees has requested a medical leave of absence for her own surgery. We typically grant our employees FMLA leave, but I was reading some CA law and noted the 3rd criteria for being eligible is that the office must be within 75 miles of another office with at least 50 people. Our CA office only employs 6 people and is miles away from Maine. We have an FMLA poster up in CA, but I'm not sure if it contains the verbage about close proximity. If we've approved FMLA absences in the past at that location, but now discover we may not have had to, are we locked in to keeping the consistent behavior of approving her request for FMLA leave or can I tell her she's not eligible, however, we'll leave it up to company discretion whether to grant her a temporary leave of absence? (We have no problem excusing her 8 week leave, but I'm afraid to be locked in if we don't have to.) Any advice? Thanks!

Gillian3

California employees are eligible for both FMLA (Federal) and CFRA (Califoria Family Rights Act). In most respects, but not all, the laws are the same, including the fact that there must be 50 employees within a 75 mile radius. Your Ca. employees are not eligible for either. It is your choice whether or not to extend the benefits to your Ca. employees. The fact that you may have done so in the past doesn't mean that you can't change your policy, just state why and provide the eight weeks leave as you want to do. If the leave is for pregnancy though, the person would be eligible for up to 4 months leave under the Ca. Pregnancy Leave regulations.

Don D

Just to be safe, and subject to correction by a California Forumite, I would suggest that you MUST grant this person FMLA UNLESS you have a notice conspicuously posted, with an old date on it, advising employees that FMLA at that location is not applicable and why. The reason I suggest this is because you said in the past it had been granted through error and now you want to stop. I think you should not just stop cold on this date especially when you have a prospect wanting the leave and you have not properly advised the employees of your prior mistakes.

Gillian3

That's an interesting point, but I would think that a poster which describes a law that does not apply to the employee group, doesn't mean that the law now applies just because a poster is up. I guess I think that because the reverse is also not true. If someone doesn't post a poster, that doesn't mean the law doesn't apply.

HRinFL

Gillian3 raises a good point, but I agree with The Don. While it appears that FMLA is not applicable in your situation, so you would have that as a defense against any claim that you denied the ee this benefit, any changes in a company's policies and/or practices needs to be communicated to the ees prior to implementing the change. Grant this request, send out a memo to be posted at the CA office, and from that point forward, it will truly be up to your discretion (just remember that in the future, you will have to be consistent. It is never a problem for good ees. but the same benefit will need to be granted to all ees).

Sounds like FMLA is not applicable in Maine, unless you had over 50 at some point in the past twelve months. If it is not, I would make sure that your practice in CA is consistent with what you do in Maine. Unless you go over 50, then there is an argument for treating the CA folks differently.

Gillian3

This is rather an obscure point, but I don't think that we can extend FMLA to any group of employees who do not qualify. We can extend a benefit equal to what the law provides, but it is not FMLA, just a leave of absence. It is a good idea, though, to clarify with employees what is going on, so that they understand. Regarding the eight weeks that is under consideration, the only problem that I see would be the inconsistency of having given more than that to an employee in the past, but that would be an inconsistency in the application of LOA, not FMLA.

Don D

Semantical Gymnastics G3. You can grant what you want, above and beyond the law, and you may call it what you wish. They can call it Gillian's Law or they can call if FMLA. If the employer is not covered by the Act or its CA counterpart, then nobody can challenge what they call it or how they operate it as long as they do not discriminatorily administer it.

My point, mirrored I think, by HRinFL, is that since the employer has an historical practice of granting the equivalent of FMLA, to suddenly apply the breaks, with an applicant for it waiting in the wings, will not set well with any hearing venue with which I am familiar. What's 'obscure' about that?

I'm pleasantly surprised to see this California Conservative opinion of yours.

HRinFL

Again, I agree with The Don. The ee has an opinion, right or wrog, that they are entitled to some form of leave, whatever it is. This is based on the company;s actions in the past. To change the "practice" of granting the leave without first communicating the change, just opens the door for resentment and damages the ee/er relationship.

Now, while the ee cannot claim s/he is denied a benefit entitled to under law, since FMLA is not aplicable, what if the company granted a LOA for someone to visit family out of state and then denied this ee's request for a LOA for a serious medical condition. While FMLA is not a venue the ee can pursue, an ADA claim is. "They denied my leave because of my disability." The company has over 15 employees, so get ready for the next round.

Man, I hate to agree with The Don twice in the same day! x:D

lnelson

I am going to disagree with The Don on this.
I am with Gillian if the act does not apply even though previously offered it should be stated to the participant now as a LOA not covered by the provisions of the FML act or CFRA. The company is not denying the leave just making it known it does not meet the criteria for FMLA.

Your handbook would also have to be updated to reflect the criteria for FMLA.

marc

Just to add a bit more nit-picking - the over 50 EE rule says they must be within 75 miles - so the CA site would not apply even if the Maine site did (see 825.110 (3)), and second, you must have been over 50 EEs for 20 weeks before the ER must comply.

I don't think this information changes anything you have seen in the posts. The indication that you have to allow the leave (make the same mistake) because you have not notified the EEs that you did make a mistake does not seem right to me, but being right does not mean you would prevail in a hearing about the issue, so granting some sort of leave is prudent - but I would go ahead and call it something besides FML so you don't further perpetuate misunderstanding about the nature of the leave you do allow. How's that for the longest run-on sentence of the day?

Don D

I like your run-on sentence Marc. It takes my mind off the comment HRinFL made about the discomfort of finding himself agreeing with me. What's so painful about agreeing with me? People just don't understand my sensitivity.

HRinFL

[font size="1" color="#FF0000"]LAST EDITED ON 03-22-05 AT 07:57PM (CST)[/font][br][br]As you said during the infamous union thread, nothing personal, it just is scary agreeing with you all the time. Makes life interesting to spark a stiff debate every now and then! x:D

jmcaa

CindyG,
You don't mention whether your company has an employee handbook and what it states about the FMLA and Leave of Absences.

Most of our locations are under 50, BUT in our handbook it implies that our company allows FMLA for qualifying conditions, etc. It is understood in our company that whether you work for the office that only has 23 employees or the office that has 52 that our company allows everyone who qualifies to take FMLA.

Is this employee in California someone you want to keep as an employee? If yes, then allow the FMLA - job protection.

I think that since you obviously had the FMLA poster sent to this office to post that it implies that they are eligible for the leave. If you want to change, then change AFTER this person takes the FMLA.

CindyG

jmcaa,
Yes, our company handbook addresses FMLA leave and doesn't mention having a minimum of 50 employees.
Thank you all for your advice. I tend to agree that this person should be offered FMLA and going forward, I need to review our leave of absence policy for all states (we also have employees in MI).

marc

Wow!! CA and MI - your company is a glutton for HR punishment.