Few things are as frustrating for a manager as dealing with an employee who’s taking too much time off and using every angle of the Family & Medical Leave Act (FMLA) to cling to his or her job.
If it’s your thankless task to manage and document the leave process as the Benefits administrator or Human Resources professional, you probably have managers breathing down your neck pleading for a speedy termination so they can fill the position with someone else and get the work done.
But you know that one misstep can cost the company dearly. You have to be the voice of caution, bending over backwards to give the employee the benefit of the doubt before you can pull the trigger.
FMLA has been around for a couple of decades, and even experienced HR and Benefits professionals may think they’ve got a pretty good handle on the law by now. But new wrinkles pop up almost all the time, and they can stump even the most seasoned pros.
The 5 FMLA Situations You Need To Know
Here are five of FMLA situations you should be on top of.
1) Can A Temp Ever Be Eligible For FMLA From Your Company?
Answer: Don’t say “no” too quickly. Although in most cases the temp agency that sent the person to your company will be judged to be the primary employer and should deal with such matters as FMLA, in some cases you may be held to be a joint employer, or even the primary employer.
If a temporary has worked at and for your company for a number of consecutive years, for example each year for several months during tax season, the temp may actually become eligible for FMLA rights from your company if he or she has worked for you for at least 12 months. The key lies in the fact that those months do not necessarily have to have been worked consecutively, which is why the temp may actually qualify.
To be eligible for FMLA, the temp must have worked at least 1,250 hours (about 24 hours per week on average) for you over the 12-month period preceding the leave request. Some temps may well have accumulated that much time.
To be eligible for FMLA, all employees must work at a worksite that has 50 or more employees within a 75-mile radius. You have a greater chance of being considered the primary employer if you exercise control over the temp and have the right to hire, fire and supervise the employee.
The kicker: To be able to deny FMLA, the onus is on you to prove that the temp did not work enough hours to qualify. The temp doesn’t have to prove anything, so good recordkeeping to keep track of hours is a must.
2) Can An 11-Month Employee Take FMLA For Pregnancy?
Answer: If an employee who’s been with your company for only 11 months announces she is eight months’ pregnant and her doctor wants her on strict bed rest in the final month because of complications, she is not eligible for FMLA leave because she hasn’t been with your company for a full year (the 12-month qualifying service period).
However, it would be illegal to terminate her because under another law, she’s entitled to unpaid leave under the Pregnancy Discrimination Act (PDA).
Note: You want to be sure to mark in her file (and notify her in writing) the moment she’s been with your company for the full 12 months. At that point, she goes on FMLA until she comes back after giving birth. This will start using up her FMLA allotment and will prevent abuse further down the road if she wants to take FMLA again later in the year for some other reason.
3) Is A Same-Sex Partner Caregiver Entitled To FMLA?
Answer: The answer is probably yes. If the live-in partner of a same-sex couple requests FMLA to care for his or her partner while the partner is suffering from a serious medical condition, the employee is likely eligible for FMLA.
Any individual who acts “in loco parentis” (in lieu of a parent) – and has the day-to-day care responsibilities for the person needing attention for the serious medical condition – is eligible for caregiver FMLA.
A biological or legal relationship is not necessary for the person to be entitled to FMLA leave.
4) Do Employees Get Paid For Holidays Within An FMLA Period?
Answer: No, they don’t get paid for holidays BUT they might be eligible for an extra day off.
If a legal holiday, such as Memorial Day, falls within a period that an employee is out on FMLA, you do not have to pay the employee for the holiday; the entire week counts as FMLA.
However, if the employer’s offices are closed and no business is being conducted on that holiday, then the holiday does not count against the employee’s 12-week entitlement. In other words, you will have to extend the leave by one extra day at the end if the employee wants to stay out that one extra day.
5) Do Employees Have To Mention ‘FMLA’ When Requesting Leave?
Answer: No, they do not have to use the magic term “FMLA.” Notice may be verbal or via email (example: text message saying “feeling bad 2day … will be out a few days … thnx”), as long as it provides sufficient information to the employer that the employee needs FMLA leave.
If the need is foreseeable, such as in the case of a scheduled surgical procedure, the employee must give 30-day notice. If the need is not foreseeable because it was due to an emergency, notice must be given as soon as practicable.
Any information indicating that the employee is unable to perform the functions of the job, or has been hospitalized overnight, is sufficient notice for the employer to draw the conclusion that FMLA leave must be granted.