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FMLA
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
An employee was scheduled to take FMLA leave due to problems with her children. Prior to her actually going out, she fell ill, and utilized her 12 weeks of leave for herself. Prior to her leaving, it
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Forums » Topic Forums » Legal Forum » FMLA
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FMLA
posted at 7/8/1999 2:28 AM EDT
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Posts: 34
First: 7/8/1999 Last: 5/8/2002 |
An employee was scheduled to take FMLA leave due to problems with her children. Prior to her actually going out, she fell ill, and utilized her 12 weeks of leave for herself. Prior to her leaving, it was agreed that when she was able to return, she would be able to do so on a part-time basis. That situation has changed, and we now need her on a full-time basis (she was full time prior to leaving). She still has issues with her kids and will need an extensive amount of time to tend to doctor's appt's and such for at least the next 2 mo. Do we need to grant another 12 weeks? and if not, if we cannot accommodate her and her doctor's appt's are we able to then terminate her? Confused? |
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FMLA
posted at 7/8/1999 2:50 PM EDT
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Posts: 90
First: 6/23/1999 Last: 9/26/2001 |
Under the FMLA guidelines, an employee is only entitled to 12 weeks of FMLA per year. How you designate you years is up to the employer, as long as you do it consistently for everyone.
When you look at the cost of hiring and training a new employee versus attempting to accommodate the existing one, it is generally cheaper to retain the current employee. However, that is only a decision the company can make. Any termination should be done in accordance with established policy and procedure. Not following that could expose you to potential liability. So you need to review that prior to any decision. If you have no policy, but have an established past practice, it may be best to stick to that. All of this is assuming of course, that you are not a union environment. If you are, you would have to follow the bargaining agreement. |
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FMLA
posted at 7/9/1999 1:04 AM EDT
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Posts: 833
First: 6/11/1999 Last: 8/23/2001 |
Technically, the employee is "out-of-time" and is no longer covered by the Act, however, if you failed to notify her that the leave was considered FMLA qualified, and as such would be deducted from her entitlement, she would be eligible for another 12 weeks. Depending on the "issues" with her children, their situation may not be covered under FMLA regardless.
You may be on the hook with your promise of part-time employment. Be honest with this employee as soon as possible and admit that the situation requires her full-time. You also didn't mention the nature of her need for part-time hours - if related to a situation covered under the ADA, you may be required to provide an adapted schedule. Since the leave entitlement has expired (again, assuming the notification process happened), you'd be under no obligation to extend intermittent leave under the FMLA, but extension of the leave may be a "reasonable accomodation" under the ADA if her situation qualifies. Rather than promise anyone anything, even though no one likes to add bad news on top of the need for a leave, advise them that at the outset of the leave you're not in a position to make promises you may not be able to keep, and urge them to keep in touch with you during the leave - that periodic contact requirement in the notification form is as valuable for peace-of-mind to the employee as it is for placement planning for the employer. |
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FMLA
posted at 7/10/1999 7:45 PM EDT
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Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
I generally agree with both prior responses. The situation you describe is a bit of a "pickle." You would be well advised to gather all of the documentation together and sit down with your favorite employment lawyer to review your options. In this area, a fact finder might be very sympathetic to the employee -- that could be trouble for you. If you need a referral, get me a call.
Matthew T. Miklave, Esq. Epstein Becker & Green, P.C. 250 Park Avenue New York, New York 10177 (212) 351-4663 (212) 661-0989 (fax) MMiklave@ebglaw.com (e-mail) |
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