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Question regarding FLMA and unpaid leave of absence
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Question regarding FLMA and unpaid leave of absence
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Hi Everyone,
I was curious to see if anyone could help answer a few questions I have regarding the difference between FLMA and unpaid leave of absence. FLMA requires that upon the exhaustion of 12
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Forums » Topic Forums » Legal Forum » Question regarding FLMA and unpaid leave of absence
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Question regarding FLMA and unpaid leave of absence
posted at 6/12/2009 1:16 PM EDT
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Posts: 2
First: 6/12/2009 Last: 6/17/2009 |
Hi Everyone,
I was curious to see if anyone could help answer a few questions I have regarding the difference between FLMA and unpaid leave of absence. FLMA requires that upon the exhaustion of 12 weeks an employee must return to the same or equivalent position with the same pay. According to the physician the employee in question is not yet ready to return to work (note the 12 weeks of FMLA have been exhausted) and the employer is willing to extend the leave for another two weeks, calling it unpaid leave of absence. Would the same requirements such as the right to the same position and pay apply to this unpaid leave of absence that is being granted by the employer, or does the employer have some sort of flexibility and could offer a different job in a company with a possibly lower pay, a job that would not worsen the medical condition of the employee? Thank you for your responses and feedback in advance. Any input would be much appreciated! |
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Question regarding FLMA and unpaid leave of absence
posted at 6/12/2009 2:29 PM EDT
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Posts: 464
First: 6/30/2004 Last: 11/22/2010 |
The employer MAY offer better job protection than FML, but is not required to do so.
After the 12 weeks of FMLA have been used, all the protection and benefits that are contained in the regulations have been met. The employer is free to offer additional unpaid leave of absence if it wishes. It can include job protection or not. Our shop offers additioanl unpaid leave, but will not guarantee the same job or any job when they are finally able to rtw. We will allow them to apply for any job for which they are qualified upon return, but will not guarantee they will get the job. We require them to pay for any benefits they have selected during this unpaid leave period. In our case, that means they have to reach into their pocket for health insurance and life insurance. They do not accrue any leave benefits if they are not being paid. Your employer can decide on a better benefit or no benefit. I would caution that you should be consistent with the implementation of the plan and not open yourselves up to any Title VII claims for discrimination to any of the protected classes. |
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Question regarding FLMA and unpaid leave of absence
posted at 6/16/2009 8:28 AM EDT
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Posts: 18
First: 5/20/2009 Last: 4/19/2011 |
We handle things very similarly to Marc and offer up to one year of medical leave inclusive of FMLA. If we know that the employee needs another week or two behind the FMLA protected time, we'll go ahead and hold the job, but generally speaking, once that 12 week mark is hit, the job is posted, and the employee may apply for any open position once s/he has returned to work. |
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Question regarding FLMA and unpaid leave of absence
posted at 6/16/2009 9:27 AM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Many companies try to establish a threshold of time beyond FMLA to allow a leave to continue. Mostly because a court case/lawsuit could be made if an employee were immediately terminated at 12 weeks when they would be able to be back at 13. That termination then looks a bit like retaliation for taking FMLA in the first place. So it is best for the employer to be a little bit flexible as long as the employee is communicating their status on a consistent basis. 2 extra weeks is reasonable. 2 extra months may not be.
However, the black line is 12 weeks. If the condition has become a disability (under the ADA definition), you might also be looking at a reasonable accommodation. One great resource on how the two work together is: http://www.eeoc.gov/policy/docs/fmlaada.html |
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Question regarding FLMA and unpaid leave of absence
posted at 6/17/2009 6:41 AM EDT
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Posts: 464
First: 6/30/2004 Last: 11/22/2010 |
And to further the complicated fun, just throw in a pinch of Workers Comp and you have the deadly triangle.
All of this can make a leave decision harder than working a rubiks cube! |
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Question regarding FLMA and unpaid leave of absence
posted at 6/17/2009 2:36 PM EDT
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Posts: 2
First: 6/12/2009 Last: 6/17/2009 |
Thank you everyone for your informative responses. They really help. We extended the leave two weeks beyond FMLA hoping the employee would return. Thank you very much for shedding more light on the FMLA situation and extending leave benefits. |
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