fmla leave

stillad · April 2004

first of all let me introduce myself, I work for a large transportation co in the west coast and I am the HR Dir. my problem that I need advice for, is the following, We have a manager/key employee that manange's the night shift, well he e-mail and called he's supervisor on 4/2/04 just informing us that he wanted to be on fmla and that he's mother was sick in mexico and did not know when he was coming back, well he does have sick and vacation time to cover he's leave but after he's initial call we have not heard from him. now my question to you is, since we do not know when he is coming back we will have to replace him, and how long do we have to wait to replace him? and if we do hire another key person can we not hire him back, because then we cannot pay 2 managers for the same job. help and desperate.

stillad

Smurf · April 2004

First all I would ask if he was identified as a "key" employee and if so not eligible under the FMLA rules. Secondly, if he is not a Key employee, then I would mail him a letter and the required documentation (Request form and Physician Certification form) to complete for FMLA leave. I would give him a timeframe to reply and if he does not meet that time frame, I would send him a letter stating that he has abandoned his position and will be terminated. As well, if he is a Key employee and knew that, then he has also abandoned his position. I would make an attempt to contact him asking for him to contact the office per your requirements for requesting leave and vacation time. I would follow those procedures. Again, if no contact, then in my opinion he has abandoned his position.

stillad · April 2004

thanks smurf, Im new at this but are you telling me that if he is a "key employee" he is not illegible for fmla?

System · April 2004

[font size="1" color="#FF0000"]LAST EDITED ON 04-14-04 AT 12:50PM (CST)[/font][br][br]I hope more forumites weigh in on this, but I read in the FMLA regs that one of the criteria of a medical health practicioner (sp?) is that he/she is licensed to practice in our country. In that light, this employee is going to see a sick relative. Couldn't the employer could choose to grant leave for a specific amount of time. If the guy says he's gone indefinitely, replace him for job abandonment. Tell me if I'm wrong, because we have a lot of employees with relatives in Mexico and are bound to hit this issue, too.
Linda

Smurf · April 2004

[font size="1" color="#FF0000"]LAST EDITED ON 04-14-04 AT 04:07PM (CST)[/font][br][br][font size="1" color="#FF0000"]LAST EDITED ON 04-14-04 AT 04:05 PM (CST)[/font]

Yes - I do believe that high level employees, managers, CEO's etc can be designated as "Key" employees, they are eligible for FMLA, however, the employer can deny reinstatement rights if they can prove that reinstating the employee after use of FMLA would have an economic effect. It is a bit confusing and there are notification requirements so I would encourage you to check the state Laws on the your Boli website and the FMLA laws concerning Key employees. But he/she would have to have been designated as such when hired and as a part of their conttract or job offer.

Don D · April 2004

I would speculate that in your 'large organization' someone who 'manages the night shift' is not a 'key employee' as defined in the Act. He may be key to the organization and it's success; however there's a particular definition that must be met as described in the FML Act. If the medical leave is certified as necessary by a physician licensed to practice medicine in the country of residence of the ill family member, that would be qualifying paperwork. The whole scenario sounds bogus, however. I feel that he just wanted to go visit and did that. You probably have no way to get the paperwork to him in another country. I would hold this all in abeyance until he returns rather than knee-jerk terminating him (which I would also be inclined to do if I were you). Fill the job and move on with your business. Any investigator I've dealt with would not find that he properly applied for FMLA or that you acted improperly. As to termination when he returns, lets wait and see what he presents.

Betty I_O · April 2004

[font size="1" color="#FF0000"]LAST EDITED ON 04-15-04 AT 06:40AM (CST)[/font][br][br]A "key" employee is a salaried eligible employee who is among the highest paid ten percent of employees within 75 miles of the work site.Under specified and limited circumstances where restoration to employment will cause substantial and grievous economic injury to its operations, an employer may refuse to reinstate certain highly-paid "key" employees after using FMLA leave during which health coverage was maintained.

The employer must notify the employee of his/her status as a "key" employee in response to the employee's notice of intent to take FMLA leave; notify the employee as soon as the employer decides it will deny job restoration and explain the reasons for the decision; offer the employee a reasonable opportunity to return to work from FMLA leave after giving this notice; and make a final determination as to whether reinstatement will be denied at the end of the leave period if the employee then requests restoration.

All that being said, I agree with Don's assessment.

stillad · April 2004

Thank you everyone you have been a great help. until now he has not called in to give us an update, and I called his home to see if his wife had any news but she did not p/u so we have a waiting game but we are interviewing now to replace him.

stillad · April 2004

Well just a note to let you know this supervisor resigned on tuesday, the day after he himself signed for a registered letter I sent him indicating we needed a return day and a doctor's medical certificate.

Don D · April 2004

Good for you. Now, if you're refrigerated, figure out a way to ship packaged salad East so it won't wilt on day 3.

fmla leave

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