Late Notification to Employee

sandytennis · July 2004

We had an employee who began FMLA leave from 12-27-03 to 1-10-04. She was sent a confirmation letter which stated the beginning and ending dates for this FMLA. The employee began taking intermittent FMLA on 1-12-04 for the same condition. The HR dept. was unaware of the leave and no confirmation letter was given to the employee. HR was just notified by the employee's manager that she only has about three weeks of FMLA time left. This employee has a lot of tardy time and when her FMLA runs out, we do not want to allow her to use personal time. What are the ramifications of the employee not receiving confirmation of her FMLA intermittent leave that began on 1-12-04?

Don D · July 2004

I suggest that you should immediately send her a certified letter stating the beginning date of her full time FMLA and the time at which it shifted to intermittent use. IF, and only IF, the manager has an accurate track of the intermittent, it can and should be charged to her maximum entitlement as well, and the letter should also state the total of that usage. The letter should inform her of the remaining balance as of (this date). It is my belief that the DOL will intend only that she gets the maximum available to her rather than blowing a gasket because she did not receive an accounting of the balance when she moved into intermittent. Inform her now and do some damage repair. Her supervisor should be snatched up short on this one.

This is the reason we must have accurate tracking mechanisms in place and ONE central point of control and accountability for the administration of FMLA, not several.

marc · July 2004

As you can see by his post, Don knows this area very well. I would not add anything but I am interested in your comments about not allowing her to use personal time because of all the tardiness.

In our shop, we require the EE to utilize all leave banks while on FML - they run concurrently. Use of this type of policy may address the personal time issue.

Rockie · July 2004

If the employee notified the supervisor that she was taking intermittent leave, then it was the supervisor's responsibility to let whoever is responsible for FMLA know this. Because the supervisor is an agent of the company, this would suffice as notifying the company of the leave.

It is my understanding if the employee is not sent a confirmation letter, the time out cannot be counted towards their FMLA entitlement, thus they are still entitled to the additional weeks.

We also require employees to run all paid leaves concurrent with FMLA.

Don D · July 2004

I respectfully disagree, Rockie. It's not necessary that we send out multiple confirmation letters, or additional letters when leave regularity changes back and forth. The ee was sent one initially. Followup notices are suggested, perhaps, but not required. It's not too late to do one now showing leave taken and balance. The intent of the Act is that the employee be notified that his leave is approved, what the total entitlement is and when it might expire, or a reasonable estimate of that.

T · July 2004

I was also requiring that ee use "banked time" concurrently with FMLA, however, I sat in on a phone conference recently and they said that the employer can mandate that ee uses "banked time" but later if ee needs time off other than FMLA that we cannot penalize the ee for being off since we required them to use their banked time. So now I let the ee choose whether or not to use their "banked time".

After our ee's use all their "banked time" we start progressive discipline for bad attendance. I understood the conference to say that I cannot do that.

Does anyone know differently about this?

Thanks.
-t

LindaS · July 2004

I agree with Don. This EE obviously knew about her rights and the fact that her time off would count toward FMLA or else she probably would have received multiple disciplinary actions for her absences/tardinesses.

I would also take a look at your communication between whoever takes care of FMLA and the supervisors. If the initial certification did not state the need for intermittent FMLA, the EE has had alot of time to come and go as they please. I would also hope that the supervisor kept accurate track of their time missed so you have accurate numbers to work with.

Don D · July 2004

"T", in my opinion, the person who told you in a phone conference that you could not later penalize a person for running out of leave, was not accurate. In fact, that's the only reason I know of for an employer to insist on the concurrent running of leaves....to ensure that what's called 'leave stacking' does not occur. With 'leave stacking', the ee literally uses up 12 weeks of FMLA, then stacks on 2 or 3 weeks of vacation and perhaps a week of sick leave. That's the real value of concurrent use being mandated by the employer, it stops stacking.

There is no federal regulation to support what that person said in the conference call.

Late Notification to Employee

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