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Re: FMLA and Unemployment
posted at 4/10/2013 4:24 PM EDT
on Workforce Management
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Posts: 1
First: 4/10/2013 Last: 4/10/2013 |
The employer should state in the Employee handbook what their rules are and stick with them and base them on the letter of the law. While she is pregnant she is being terminated due to exhausting her FMLA benefits from another injury AND has bypassed the date noted in the company handbook. Then you send out the COBRA notice. I've always learned that if you are too kind, it will get you into trouble with the DOL. Treat everyone the same regardless then there is no chance of being sued. |
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Re: FMLA and Unemployment
posted at 4/10/2013 11:57 PM EDT
on Workforce Management
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Posts: 1
First: 4/10/2013 Last: 4/10/2013 |
I like the Personal LOA option for extending the Leave, but again, that, too, requires fair treatment in its extension and approval criteria for all employees. Do you think there could be a business hardship case made for approving one Personal LOA in a similar scenario but not another...say for in different departments with different staffing needs? I would want to also know if the employee has any benefits while on LOA. If not, terminating employment may not be such an inhumane thing to do (if warranted otherwise) as the employee could be eligible for UI benefits assuming the company chooses not to protest. Another factor here is the position itself....how easily could a temporary replacement be utilized or moved to another department, or could the employee returning from LOA be moved somewhere else? But it sounds as if this may be an underperformer and the company prefers to move on without her. If that is true, I would make a clear case for the record of the business need to replace. |
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Re: FMLA and Unemployment
posted at 4/11/2013 10:42 AM EDT
on Workforce Management
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Posts: 222
First: 9/29/2011 Last: 5/15/2013 |
Early in my career, one of my directors told me that in HR "no good deed goes unpunished". What he was saying, which experience has since convinced me has merit, is that if you go outside the rules to do something good for an employee, it'll come back to bite you. In a case like this, it might be someone in the past with a similar situation (or thinks its a similar situation) who's now going to complain, file a case, etc because she/he didn't get the same benefit. Or it might be a future case of "you did it for Jane, why not for me?". |
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Re: FMLA and Unemployment
posted at 4/11/2013 11:18 AM EDT
on Workforce Management
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Posts: 15
First: 4/11/2013 Last: 5/8/2013 |
I am a little rusty, but I will give it a shot at answering your question, here goes: You have an employee, over 6 months pregnant, who was involved in a serious car accident resulting in her continuous absence from work. Your employee’s due or actual delivery date is 10 weeks after her original FMLA leave commenced. What I do not know is:
The 1st question is only relevant insofar as it provides insight into your rationale for considering terminating her employment (e.g. the accident was fairly recent and your initial reaction demonstrates a lack of empathy for your employee’s medical well-being). The 2nd question may determine whether your employee is a qualified individual under the ADA and is eligible for reasonable accommodation. You should be aware that under the ADAA an employee’s extended absence, by itself, is no longer a sufficient reason to deny an employee reasonable accommodation. The 3rd question follows up on the 2nd question relative to the ADA, and based on the information submitted may allow you to request more frequent updated medical information than is currently required under the FMLA. (If I recall correctly, an employee is only required to provide medical updates every 30 days.) The 4th question is based on my own experience and was predominantly a problem for employees who requested intermittent FMLA leave for a chronic condition. However, even under your circumstances, the information you receive may require clarification or determine whether a 2nd opinion is necessary. Unless there has been an update to the Pregnancy Discrimination Act of which I am unaware then, under federal law, the fact that your employee is pregnant not relevant, but as others have suggested, a pregnant employee may be entitled to additional protections under state law. I believe the prior responses covered your obligations under the FMLA. |
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Re: FMLA and Unemployment
posted at 4/11/2013 12:53 PM EDT
on Workforce Management
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Posts: 22
First: 11/15/2011 Last: 4/12/2013 |
Wow, I appreciate everyone's responses. We are a small company and this employee is an outside sales person, fairly important to our ongoing business. She does have performance issues so that is a factor as well. We are consulting with legal counsel and are looking at all of the issues, knowing that this decision will affect other decisions we make in the future. |
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Re: FMLA and Unemployment
posted at 4/12/2013 2:22 AM EDT
on Workforce Management
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Posts: 1
First: 4/12/2013 Last: 4/12/2013 |
I think their are considerations beacuse even if she can come on the date said, she cannot work easilly because of the accident and she needs to take rest also. Another thing is, if she is many years working at the company, may be she is allowed for another extension. It is another burden for her if she will lost her job and if she has a good record, I think they can consider it. |
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Re: FMLA and Unemployment
posted at 4/12/2013 12:57 PM EDT
on Workforce Management
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Posts: 22
First: 11/15/2011 Last: 4/12/2013 |
In Response to Re: FMLA and Unemployment: If she is an outside sales rep, did the automobile accident happen while she was in a work status and performing work for you? Posted by nork4 No, it was on the weekend. |
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Re: FMLA and Unemployment
posted at 4/15/2013 5:34 AM EDT
on Workforce Management
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Posts: 23
First: 2/21/2012 Last: 5/2/2013 |
In our company we allow employees to continue being on leave even after they exhaust their FMLA. They go on STD after 5 business days and LTD after 6 months. If they cannot return to work after 1 year they are terminated. (For pregnancies it is the usual 12 weeks max). So in this case they could take time off to have their baby (even if FMLA was exhausted) but they have to return per DOctor's orders. IF they want more time off to bond with baby that is up to the SUpervisor's discretion (depening on business conditions) and NO PAY. |
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