FMLA - not yet eligible

Catbert22 · October 2007

We have a pregnant employee who is not eligible for FMLA until Nov. 15th. Her doctor has put her on bed rest, effective immediately. This poses 2 questions. Can we legally begin her FMLA now, before she is actually eligible? Or can the FMLA start on Nov. 15th, even though she'll have been on non-FMLA leave for a month at that time?
Thanks!

Beverlee · October 2007

It's my understanding you can always go above and beyond the law- but not less than the law allows.

How do you count the time, rolling backwards or calender year? If Nov. 15th is her hire date, has she worked more than the 1250 hours?

Catbert22 · October 2007

Yes, she has worked the 1250. Our time is counted as the 12-month period measured forward from the date any employee's first FMLA leave begins. By allowing her to start her FMLA leave a month before she's eligible, wouldn't we open for a lawsuit if another employee wants to do the same and is denied?

NeedCoffee · October 2007

Employees must have worked a full year in addition to the 1250 hours rule. You wouldn't necessarily be opening yourself up for a lawsuit, but you would be setting a precedent.

Is it possible for your company to grant an approved, unpaid leave of absence for the 1st month, then put her on FMLA after that?

Catbert22 · October 2007

Yes, a month of non-FMLA unpaid leave was a consideration, but we didn't want her to take the first 4 weeks, plus an additional 12. What do you think about terminating the employee (she can go on her husband's insurance - he's also an employee), then re-hiring her after she is able to return to work?

hrnewbie · October 2007

my only thought with termination is you do not have any grounds to terminiate and this may be considered discrimination.

Catbert22 · October 2007

Wouldn't the fact that the employee is unable to work and ineligible for FMLA be grounds for termination?

NaeNae55 · October 2007

I think we need a lawyer to chime in here. I seem to remember reading about a case where the employer let the employee have fmla leave early (and then later termed the employee when the leave was exhausted and they had not returned to work), but the judge said the fmla clock did not start until the employee had been there 1 year. Time given before was just a leave of absence and could not be charged against the 12 weeks of fmla. After the 1 year clock ended the 12 weeks available time started. Thus the employer owed the employee more leave time before termination.

I don't remember the case. I think I read about it at least 2 years ago. I would have trouble telling you the name if I read about it yesterday, so there is no way I could remember 2 years ago.

Anyone remember the case?

Nae

Catbert22 · October 2007

I don't recall the case, but I thought I'd get the answer by calling the local Wage & Hour branch here in Phoenix. I was told that FMLA does not start until the employee has met the 12 month requirement. Any time off granted prior to that is not considered FMLA. So that answers that question. To wrap this up, I found out that the Manager had already approved a 60-day leave for this employee, so termination is no longer an option. It looks like she'll get 16 weeks of leave, the last 12 of which will be deemed FMLA. Thanks to all who contributed!

FMLA - not yet eligible

Comments