FMLA Eligibility
CindyG
44 Posts
Our corporate office in Maine employs just under 50 employees as of recent. We have a satellite office in California. One of our employees has requested a medical leave of absence for her own surgery. We typically grant our employees FMLA leave, but I was reading some CA law and noted the 3rd criteria for being eligible is that the office must be within 75 miles of another office with at least 50 people. Our CA office only employs 6 people and is miles away from Maine. We have an FMLA poster up in CA, but I'm not sure if it contains the verbage about close proximity. If we've approved FMLA absences in the past at that location, but now discover we may not have had to, are we locked in to keeping the consistent behavior of approving her request for FMLA leave or can I tell her she's not eligible, however, we'll leave it up to company discretion whether to grant her a temporary leave of absence? (We have no problem excusing her 8 week leave, but I'm afraid to be locked in if we don't have to.) Any advice? Thanks!
Comments
Sounds like FMLA is not applicable in Maine, unless you had over 50 at some point in the past twelve months. If it is not, I would make sure that your practice in CA is consistent with what you do in Maine. Unless you go over 50, then there is an argument for treating the CA folks differently.
My point, mirrored I think, by HRinFL, is that since the employer has an historical practice of granting the equivalent of FMLA, to suddenly apply the breaks, with an applicant for it waiting in the wings, will not set well with any hearing venue with which I am familiar. What's 'obscure' about that?
I'm pleasantly surprised to see this California Conservative opinion of yours.
Now, while the ee cannot claim s/he is denied a benefit entitled to under law, since FMLA is not aplicable, what if the company granted a LOA for someone to visit family out of state and then denied this ee's request for a LOA for a serious medical condition. While FMLA is not a venue the ee can pursue, an ADA claim is. "They denied my leave because of my disability." The company has over 15 employees, so get ready for the next round.
Man, I hate to agree with The Don twice in the same day! x:D
I am with Gillian if the act does not apply even though previously offered it should be stated to the participant now as a LOA not covered by the provisions of the FML act or CFRA. The company is not denying the leave just making it known it does not meet the criteria for FMLA.
Your handbook would also have to be updated to reflect the criteria for FMLA.
I don't think this information changes anything you have seen in the posts. The indication that you have to allow the leave (make the same mistake) because you have not notified the EEs that you did make a mistake does not seem right to me, but being right does not mean you would prevail in a hearing about the issue, so granting some sort of leave is prudent - but I would go ahead and call it something besides FML so you don't further perpetuate misunderstanding about the nature of the leave you do allow. How's that for the longest run-on sentence of the day?
You don't mention whether your company has an employee handbook and what it states about the FMLA and Leave of Absences.
Most of our locations are under 50, BUT in our handbook it implies that our company allows FMLA for qualifying conditions, etc. It is understood in our company that whether you work for the office that only has 23 employees or the office that has 52 that our company allows everyone who qualifies to take FMLA.
Is this employee in California someone you want to keep as an employee? If yes, then allow the FMLA - job protection.
I think that since you obviously had the FMLA poster sent to this office to post that it implies that they are eligible for the leave. If you want to change, then change AFTER this person takes the FMLA.
Yes, our company handbook addresses FMLA leave and doesn't mention having a minimum of 50 employees.
Thank you all for your advice. I tend to agree that this person should be offered FMLA and going forward, I need to review our leave of absence policy for all states (we also have employees in MI).