FMLA Questions and Answers
By VICKY BROWN
Well, there’s a bit more to it than just giving your employees 12 weeks off. The Family Medical Leave Act (or FMLA) provides time off to care for a new child, to deal with your own medical condition, deal with the medical condition of a family member, and even military duty.
And there are lots of guidelines, and timelines and all sorts of lines associated with managing FMLA, and many times there are comparable state programs that come into play.
But the focus of this episode isn’t the standard ins and outs of FMLA. In this episode, I’m going to focus on some little known, odd, one off questions that come up with FMLA.
So, first up:
My employee is pregnant and asked for FMLA time off, but she has only been with us for 10 months, so she isn’t eligible for FMLA. We denied her request, but now she is upset and says we have to give it to her anyway. Is she right?
OK, this is a situation that can really trip you up. You have someone asking for FMLA, and you know one of the requirements of eligibility is to be employed for 12 months; and they haven’t been with you that long.
So, in this case the employee is pregnant (and I happen to know she is in California, a state that has a Pregnancy Disability leave law). So, if your employee will effectively hit 12 months during her time out on Pregnancy Disability; then yes – she would be eligible for FMLA once she hits the 12 months mark.
Just to make it clearer – if the employee is on a non FMLA leave, and during that time they will hit 12 months of service – then (assuming the situation meets all the other FMLA criteria) they become eligible for FMLA.
Now, as you can guess – in certain circumstances, that might mean the employee is getting more than the 12 weeks of FMLA.
For instance, let’s say your company has a parental leave policy of 10 weeks. And where applicable, you have stipulated that the parental leave policy will run currently with FMLA. So now let’s say James has worked for you for 10 months, and he goes on parental leave. Well, 8 weeks into this parental leave time off, James will hit 12 months. At that point he becomes eligible for 12 weeks of FMLA – going forward.
So James will get 8 weeks of parental leave; and at that point become eligible for FMLA, so then get another 12 weeks of FMLA – that’s 20 weeks off for James.
8 weeks of parental leave (not running concurrent with FMLA, because at that point he isn’t eligible); and then 12 weeks of FMLA (2 of which runs concurrently with the remaining parental leave time).
“…8 weeks into this parental leave time off, James will hit 12 months. At that point he becomes eligible for 12 weeks of FMLA – going forward.”
Clear as mud? OK, moving on….
We have a new employee who isn’t really new. She worked with us 2 years ago, then left last year for another job. But she wasn’t happy so asked for her old job back, and we gave it to her. She has been with us for 8 months, and now she’s asking for leave under FMLA. Can we say no – she hasn’t been here long enough.
OK, you’ll love this answer. It depends.
See, don’t you love it when HR says ‘it depends’?
Well, in this case, it does. The criteria for your employee to be eligible for FMLA is that they have worked at least 1,250 hours in the past 12 months – and at 40 hours a week, that’s approximately 7 months – so she may be there. In addition they have to work for you for a minimum of 12 months. Now this is the fun part – the 12 months don’t have to be all in a row. It just has to be a cumulative 12 months in the last 7 years. They just have to have happened within the last 7 years. So if you add up the amount of time she worked with you the first time around, and the amount of time she has worked with you this time around – it that’s 12 months or more, then YES, she is eligible for FMLA.
Our next Q is
Does a holiday count during FMLA?
There’s that answer again – it depends.
If the employee is on FMLA for the entire week, then no the holiday gets wrapped up in that FMLA week and doesn’t count as a separate day off.
However, if the holiday falls in a week when the employee is only on FMLA part of the week (this usually happens at the beginning or end of an FMLA period), then yes – the holiday does count as a separate day off. Keep in mind, that while this usually comes up at the beginning or ending of an FMLA period, it might also come into play when the employee is taking intermittent FMLA.
Alright – how many times have you heard the next Q
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I just found out my employee – who is supposed to be out on FMLA for medical reasons -is working at another job. Isn’t that fraud – can I fire her?
OK, there are two things in play here 1) the FMLA leave. You can’t – I’ll repeat – cannot fire someone for taking FMLA.
Now the other question is what about the other job. That depends on the rules in your state. For instance, in California an employer can’t discipline or fire someone for simply having another job – yep, moonlighting is legal. So you wouldn’t be able to say anything about her having another job while she is on FMLA.
After all – depending on the reason for FMLA (maybe it’s debilitating job stress; but she feels she needs to take another job that’s less stressful to pay the bills during her FMLA (because remember FMLA is unpaid time off). So no, you have to just leave her alone, let the FMLA time run out, and see what happens when it’s done. Is she ready to come back, or will she decide to stick with the less stressful position.
Now, if you’re in a state that does not allow moonlighting, as long as you apply the ‘no second job’ rule to everyone, then yes – you can apply that rule to her as well.
Alright – we’ll finish up the FMLA Qs next week.