Transitioning ee from ineligible to eligible for FML

dlail

We have an employee who is ineligible for leave under FMLA due to employment of less than one year. We approved his medical leave under our "extraordinary leave" policy, which we apply when ees are not, guess what, eligible for FML. His current medical leave is for 1/2-day absences, with an estimated RTW release effective 9/5/2006. This is also his one-year anniversary date. If his leave is extended due to medical necessity, how best to avoid stacking events between non-FML and FML leave? Or are we still compliant if we state in advance of his FML eligiblity date that combined leave may not exceed 12 weeks? We currently have a 12-months forward calendar.

Please advise, thnx, Debbie

NaeNae55

Unfortunately, the law requires 12 weeks of fmla leave as soon as the employee becomes eligible. There has been more than one court case on this. Legally, it doesn't matter how much time they have taken before they become eligible. Once they hit that 1st anniversary (and all the other requirements) they are eligible for 12 weeks.

Good luck!

Nae

dlail

OK, we are also looking at changing our rolling period to 12 months prior, and of course, the soonest we can do that is 60 days. Arter that point, if he requests additional time under FML, can we consider ALL leave time taken in the previous 12 months?

NaeNae55

I am not an expert, but I don't think so. Time taken before the employee's anniversary date is just leave. It is not fmla leave. Sorry.


Nae

VS

You can only count the FMLA time off towards his 12 weeks. No matter how much Medical Leave he used, he still is entitled to his 12 weeks of FMLA, as the previous poster also stated.

We also have a Med. LOA policy and if not eligible for FMLA, employees are then placed on Med LOA. The first 12 weeks we allow the employees to pay just their portion of the benefit costs. However, when they slide over to FMLA when eligible, they once again get 12 weeks under the employee rate for their benefits, as required under FMLA. We are now trying to figure out how to fix that. Not sure we can. Maybe the FMLA Regs we will allow us to credit that 12 week payment to the FMLA. Or, it may be that we just can't offer Med LOA until after they are eligible for FMLA and use it first. Don't know. We need to get the "minds" together. Thought I would just share our dilemna.

Have fun!!!

VS