FMLA - Why am I on the fencepost on this one? HELP

nietra

Employee is requesting 2 days off to provide assitance to her mother who will be in the hospital becuase is having surgery for breast cancer.

Without knowing anything further what would you say?

LivindonSouth

If it's the mother who is having surgery, the daughter would be eligible unless something else disqualifies her.




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Gillian3

See you on Monday, and the best to your mother. Not sure why you are on the fencepost, other than you think the employee may be faking it or for some other reason she may not qualify for FMLA. If she doesn't qualify for FMLA, maybe some other type of leave would apply.

nietra

I'm not sure why I am having trouble designating these 2 days as being covered.

I guess I know the situation will turn into something more within the next few months and she will be using her 12 weeks later in the year.

I'm afraid that if we do count this and terminate after exactly 12 weeks that the court will say but those 2 days should not have counted because " ..." and come up with something either related to the 3 days or to not providing care since she is still in the hospital.

I want to err on our side, say no (we don't have an attendance policy so she will have no negative actions taken against her) and provide her with an additional 12 weeks later in the year.

Gillian3

That would work as well. You are doing what is best for the company, and the employee. That's cool.

lorrie

It seems to me that if you are willing to let her have the 2 days off, without negative consequences, and without FMLA designation, then you are both better off to do this. (Assuming you are willing to do the same for any other similarly situated employee.)

marc

It is up to the ER to designate leave as FML, usually done with medical certification, however, as long as you are not applying negative consequences to an otherwise protected leave, FML need not apply.

If you do not give the leave, and it is FML, then you have stepped into it a bit.

Give the leave subject to medical certification paperwork being turned in. By the way, there is a whole nuther section to qualified leave besides just the 3 day rule - this could well qualify.

Read up on the eligibility piece and see what you think.

Here is one excerpt from the regs:

(a) For purposes of FMLA, ``serious health condition'' entitling an employee to FMLA leave means an illness, injury, impairment, or physical
or mental condition that involves:
(1) Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity
(for purposes of this section, defined to mean inability to work, attend school or perform other regular daily activities due to the serious
health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care; or


etc, etc.

LivindonSouth

[font size="1" color="#FF0000"]LAST EDITED ON 07-14-05 AT 06:27PM (CST)[/font][br][br]Marc left out the part about attending an immediate family member to offer psychological support even though the family member has attendant, in-patient medical care. She is eligible for FMLA in this case and it should be charged as such. I suggest you'd be better served to simply apply the regs and show it as FMLA, without regard to your assumption that she may later need 12 weeks. Who knows; she may later need 14 weeks and, since you have no policy, what do you intend to do then?

Following the law is not about being 'cool'. It's about doing everything in your power to see that your policies and practices protect your business from legal challenge and monetary loss. Consistently, properly following the regs is your best path.




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

nietra

We have a policy so there will be no issue there. I'm just waivering on these 2 days that she is going to be with her mom for the surgery.

Our employees get annual training on FMLA and know what they are entitled for what circumstances however in this case she only asked for illness leave for two days. I learned elsewhere of the reason.

I have since sent the proper documentation to the employee and will discuss her future leave issues as being covered under FMLA with her when she returns.

SMace

Annual training on how to use FMLA? We post it where we need to and have it in the handbook. Does anyone else do this?

LivindonSouth

I've always thought it would be a mistake to train the general employee population on the intracacies of FMLA. Same with having training on Workers' Compensation and how it can benefit you to claim your injury is work related rather than personal. There's a real difference between informing employees about policies and required procedures and making them program technicians, which some will certainly become soon enough anyway.




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

HRLASS

We have an FMLA policy, operating procedures and forms online for employees. As a member of our in-house legal department, I have also written FAQs on the FMLA, FLSA, workplace violence and harassment and retaliation for an internal "LawCheck" website - an attempt to provide preventive law information to make a dent in our legal costs.
We also have periodic training for employees at all levels. It's not the technical stuff HR handles, or tracking, but reminding employees (and supervisors) of the basics: what kinds of leave there are, to designate the leave as FMLA, to fill out the forms, what to do/where to send the physician's form, what is a serious health condition (in general), and what relatives qualify under family care leave.

To address the original question, our policy says any absence over 5 days needs to be reviewed as FMLA qualifying - unless we are informed of a surgery or other obviously qualifying condition. For the conditions you described, our practice is to allow supervisor discretion which generally means, is this someone who habitually abuses leave or are we in a crucial all-hands-on-deck situation? Since it sounds qualifying, as (marc?) said, they get the leave. In general, the supervisor would simply allow 2 days off, probably with pay as sick leave. Formal FMLA designation would come up if the absence is longer and if continuing care was going to be an issue.

SMace

Question and comment:

Why over 5 days? The absence plus treatment section of a serious health condition is more than three days.

Attending to an immediate family member has no "out a certain day" requirement that I'm aware of. It's either FML or it's not.

njjel

OK. So does everyone here agree that the care of family member does not require more than three days to be FMLA?

LivindonSouth

That's correct. All that's required is that it be a qualifying condition. It could, for example, be intermittent, never two days in a row. Or it could be as simple as one overnight in the hospital followed by one day of bedrest.




Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

HRLASS

Answer:
You are correct on all counts. Our company policies for sick leave and FMLA (particularly sick leave) are quite generous and therefore we allow employees 5 days before we contact re FMLA (and some supervisors are more lenient than that). We have considerable trouble getting supervisors to delegate leave as FMLA and to fill out paperwork even when others do the tracking (even though employees here have paid leave for the full 12 weeks if it's their own health condition). Admittedly it works against us, but management has not seen fit to press the issue, so sometimes we're stuck.

njjel

If it is for an ee's own condition, however, aren't you in violation of the regulation by giving them 5 days rather than 3?

HRLASS

It has not been interpreted that way to date by our outside legal counsel. Lenient, inconvenient, and costly, but not illegal.

marc

The only violation that would happen is if the EE in question were disciplined in some fashion, which would be an adverse employment action, during the leaves that were less than 5 days but were still FML qualified.

In general, not starting the clock benefits the EE.