Employee just short of 12 months of employment
City
13 Posts
We have an employee who was injured in a car accident on July 19th and her 12 consecutive month anniversary of employment with us is August 4th. She will be out about 8 weeks with a broken ankle and 2 broken vertebrae (she is not paralyzed or impaired other than the normal healing time required for broken bones). She is not entitled to FMLA leave because she has not worked for 12 consecutive months with us. What happens once August 4th gets here? In my mind, she won't be working for us until she comes back to work around September 6th and that will start the clock again for the twelve consecutive month rule and she won't be entitled to any FMLA until she's worked for 12 more month's from the date of her return to work. Am I way off base or am I correct in this analysis?
Comments
First, I assume that this EE has worked the requisite 1250 hours during her employment. She may or may not have balances in her paid leave banks (vacation, sick pay, personal days, PTO, etc), which can have an impact on the answer. But absent these leave banks, your scenario has her returning to work after her absence, so the company has decided to let her come back whether or not the absence is unpaid.
That means to me that you have decided to keep her as an employee when the anniversary date of her employment happens. That is the day she becomes eligible for FML. On that day, August 4, she will still be out on leave and her 12 weeks starts. It sounds like you will be able to count several days of her absence as FML from that point forward.
Check out 825.110 of the FMLA, there are several paragraphs there that pertain.
You are also off base in your method of applying the 12 consecutive month rule. Once an EE has worked 12 months for you, that provision is forever satisfied. Even if the EE leaves and comes back, they have worked the 12 months.
That leaves the 1250 hours rule. To apply that rule, you look back 12 months from the leave request to determine if the EE has worked 1250 hours. A normal 40 hour per week EE will have probably met that requirement in the scenario you described.
What a mess.
Management is not sure whether or not they want to keep her as an employee so this is why the timing is so crucial.
There are some other twists and turns that impact that timing, so go to the regs and make sure you don't get caught with a costly delay.
Good luck.
Just curious though - wouldn't you already have a good idea if she's a performer or not?
Most of our labor forces display the usual bell curve.
You've got a few superstarts and a few folks who might develope into superstars. On the other side, there are those who will be gone - it's just a matter of time, and those who were not sure of yet (like this lady).
And the vast majority who do enough to get by but aren't going to wow anyone - the average performers.
I'm trying to develop better interview and recruiting skills to try and identify what kind of performer each person will be. If I was better at spotting those that won't work out or who will be marginal, think of the headaches that could be avoided.
Sighhhhh.
In that case, the employee had enough leave time available to carry them through to their anniversary date (and the prerequisite 1250 hours). The judge said the employer was wrong and that they should have allowed the employee to use their time up to the anniversary date. At that time the employee became eligible for a full 12 weeks, with or without paid leave. The judge felt the employer was pulling a fast one and came down hard on them.
If your employee had enough time accrued, then you might have gotten into some serious hot water by terming them. I have no idea of what a court would say if the employee had no leave available.
On a final note, you indicated that you intend to document things thoroughly when the employee comes back from their FMLA leave and possibly term them then. Just be careful, as that might lead you to a FMLA retaliation lawsuit. (Lots of documentation after but none before might smell suspicious to a court.)
Good luck!
Nae
Her problems have to do with customer service issues and she had been working to better present herself and treat clients with more respect. She is a receptionist and had several of our clients complain about her attitude toward them when they enter the reception area. Apparently, she was "rude", "snotty" and condescending. We tried to nip it in the bud since her demeanor is so important at that desk and she was immediately told about the issues. We hadn't had any complaints since (this occured about 3 weeks before the accident) but there was a lot of concern as to whether or not we had the right person in that position. We also wondered if there were other times that it happened but our clients just either went elsewhere with their business and didn't tell us or just let it happen to them. Anyway, she gets another chance to prove herself worthy of the position when she returns from her FMLA leave!