FMLA Dilemma

HRGuyMS · March 2004

If an employee is not eligible for FMLA (worked for the company only 6 months - less than 1250 hours), can you designate approved (unpaid) time away from work for a medical condition as FMLA leave and count that time towards the 12 week maximum?

Balloonman · March 2004

Don't do it. If you want to approve a unpaid leave fine, but it is not FMLA, they do not qualify. Second, be ready to do it for others in the future.
DJ The Balloonman

Peyton Irby MS · March 2004

if the employee is not eligible for FMLA, it is not a good idea to count leave as FMLA. you can count as unpaid leave and give the employee some job protection assurance [if you want to] for whatever time you deem appropriate.
Peyton Irby
Editor, Mississippi Employment Law Letter
Watkins Ludlam Winter & Stennis, P.A.
(601) 949-4810
[email]pirby@watkinsludlam.com[/email]

SMace · March 2004

Wht would you not count it as FML and give job protection? Job protection is the main difference between unpaid leave and FML. If you are going to give job protection, I think you would be better of designating it as FML so they don't get an additional 12 weeks once they qualify.

SMace · March 2004

Another flip of the coin is if you give them unpaid leave before they are eligible for FML, once they reach eligibility they can get 12 more weeks. If you are going to approve leaves of absence before the one year eligibility often, I will argue that it may not be a bad idea to count it as FML. I'm sure I will get some flack, but we need some spice around here. It's getting boring.

Don D · March 2004

Here's your flack SM. If one does as you suggest and grants leave and 'calls' it FML, that is meaningless when/if the person finally does qualify for federal FML. You cannot then say, "Aha, you've already had your FML because we called it that." Under the law, he could not have had and has NOT had FML that he did not qualify for.

SMace · March 2004

I disagree. If you have them fill out certification and designate it as FML it's FML. You can apply less stringent guidelines than allowed by law.

LindaS · March 2004

SMace - I have to agree with Don on this one...

I have several employees who do not have enough hours to re-qualify for federal FMLA so I contaced our attorney regarding this and she advised NOT going over and above what the law requires regarding eligibility requirements. As she explained it, say you tell a person that you are granting them "FMLA" leave even though they don't qualify under the regs.. The person then uses all their "FMLA" and are later terminated. They can, and courts will probably agree with them, sue you saying that you can't count that time as FMLA because they didn't qualify for it. I don't like it but we, as a company, agreed NOT to go outside of the regulations regarding eligibility for this very reason.

SMace · March 2004

I will say your attorney is speculating on the outcome. But that is what they get paid for. I say the regs do not say that you cannot designate leave before the year and hours requirement is met. If you follow the DOL guidelines for certification and notification that their leave will be counted as FML you don't have a problem. A court is going to punish me for giving more leeway than the fed guidelines require? I kept their job and benefits intact and they knew it, yet I get punished for it? I am also speculating and that is part of what I get paid for.

We will agree to disagree unless I see a court decision or DOL interpretation that says otherwise.

Don D · March 2004

Yes, SMace, it's fine to go above and beyond what the law requires. Very simply, however, once that employee does meet federal requirements, you will be granting them the entitled FMLA all over again. How does 24 weeks sound to you? That's certainly above and beyond and will make you appear quite generous.

SMace · March 2004

They get 12 weeks per year, however you define a year. They could get 24 weeks if you grant them 12 weeks unpaid leave and they could get it sooner.

lnelson · March 2004

Depending on the amount of time the ee is reguesting.

I would grant the unpaid leave but would not apply it towards the FML. I would also want a specific date of return and appropriate documentation from dr. for release back to work.

Lisa

Balloonman · March 2004

See HRGuyMS,
You no longer have a dilemna thanks to the wonderful assistance of your fellow HR professionals. It is not FMLA and in no way shape or form should it be classified that way. The only decision left for the company is if they wish to grant unpaid leave for the individual.
My $0.02 worth.
DJ The Balloonman

LindaS · March 2004

SMace -

I think you're intent is to try to be a good employer, and that is commendable but the fact remains that the regulations state that once an employee meets the eligibility requirements, they get 12 weeks of unpaid leave off. If you try to go "above and beyond" and grant them the time off before they are qualified under the regs., that's great but you will still have to grant them the full 12 weeks once they become eligible. You cannot count time as FMLA until the employee meets the eligibility requirements. If you want to grant time off before they are eligible, great, but do NOT count it against the 12 week allotment until they are officially eligible.

I will agree with you that our attorney was speculating regarding a possible problem if we went outside of the regulations but I can guarantee you, I would not want to be the one explaining a lawsuit to my employer if something like that came to pass.

SMace · March 2004

You say you cannot count the time as FMLA before the federal requirements allow. I say you can. Show me something in the FMLA regs or a DOL opinion that agrees with you and I'll change my tune. Otherwise I will not.

Don D · March 2004

SMace: Nobody has said you 'CANNOT'. Several have recommended you 'SHOULD' not. I did too. Nothing says you can't do that if you wish. You can grant them 365 days off per year if you like. Federal law clearly states just what she posted, that once the individual meets federal qualifications, they are entitled THEN to up to 12 weeks off beginning with day one of federally qualified FML and the clock is defined carefully as beginning at that point, when leave is first taken. It's very easy to get ahold of a federal DOL investigator. Simply call the federal building in your capitol city.

SMace · March 2004

Re-read Linda's post. She said I cannot.

I found this in the regs (I didn't see what you were referring to anywhere. You seem to be substituting your opinion as law):

"Subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during ANY 12-month period for one or more of the following:"

We define the 12 month period as rolling back from the date of request.

I don't need the DOL investigators advice. I believe in this situation it will vary depending on which investigator I talk to. I am comfortable with it and our attorney's are comfortable with the prospect of defending it.

By the way I don't think I ever said you should do it my way. I'm just offering up a different interpretation. Our GM's had routinely allowed leave before the one year eligiblity good, bad or indifferent. Then they complain that everyone is always out. So we tried something different. I try to balance production, law and doing the plain old right thing every day. And this is the result.

By the way, I do enjoy yours and Linda's insights. This is great debate and if you prove me wrong, I'll be the first one to tell you. In my opinion you haven't yet.

AluminumBoy · March 2004

Here's a real mind boggling idea. What if we give employees FMLA from Day 1...ok, maybe day 30 or 90?

Let's assume we've done a good job hiring our folks.

If they really need the leave, it's a very nice way to get things off to a good start. How much will this mean to the employee...a lot.

If the employee is a piece of crap and trying to take advantage of the situation, I'm sure all of us can be creative enough to find another reason to sh&%can the person.

Here's the question I would ask: If there was no such thing as FMLA, how would you handle it? If you wouldn't help the person with a leave, then don't do it now. If you would be inclined to help them, just do it and don't bother the lawyers and other detached folks who don't know how to run businesses.

Don't let the lawmakers make the decisions for you. Don't do something to get your company in trouble, but make YOUR decision fit into what the law gives you.

So, HRGuy, it comes down to, What do you want to do?

If this is something that routinely happens or that's a real concern, I'd do a better job of hiring people. Good people like to work.

HRGuyMS · March 2004

My FMLA Dilemma seems more like an FMLA Controversy. Thanks for everyone's input and advice. Company officials met and we decided not to designate the leave as FMLA. One of our concerns was in setting a precedence. The employee in question is scheduled to be out 3-4 weeks.

AJ SPHR · March 2004

SMace - in your quote from the regulations, it refers to the rules regarding an ELIGIBLE employee. I think what others were explaining is that you can give job protected unpaid leave before an employee is eligible for FMLA, but just recognize that:
1. You're setting a precedence and would need to follow this example in future situations.
2. Once an employee becomes ELIGIBLE for FMLA leave as defined by government (after 1 year of service), then the employee can take 12 weeks of unpaid protected leave for eligible situations.

So, I think what the posters above me were saying is that you would exclude the non-eligible job protected unpaid leave time once the employee becomes eligible for FMLA leave. I know I've seen this situation described in some kind of newsletter or internet site, so I will look for the source to provide more information.

Very interesting debate!

FMLA Dilemma

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