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approved time off
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approved time off
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
An employee has been out for 6 months under various disability complaints. During that time, I have sent her the FMLA forms to fill out but she has not done so. Do I still have the right to apply the
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approved time off
posted at 11/30/2010 10:36 AM EST
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Posts: 4
First: 8/5/2010 Last: 12/2/2010 |
An employee has been out for 6 months under various disability complaints. During that time, I have sent her the FMLA forms to fill out but she has not done so. Do I still have the right to apply the time to FMLA? this is the state of New Jersey |
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approved time off
posted at 11/30/2010 4:56 PM EST
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Posts: 4
First: 8/5/2010 Last: 12/2/2010 |
Although this isn't my feeling, I have been told to apply this to the FMLA time-I believe it was to try to catch this person making a mistake by not reporting additional time off with a medical certification. |
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approved time off
posted at 12/1/2010 2:29 AM EST
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Posts: 1103
First: 3/16/2007 Last: 8/19/2011 |
Not the best of reasons.
If the person isn't at work, has refused to complete the FMLA paperwork and you need them to work, simply give them an ultimatum; return to work with no more absenteeism or we end the employment relationship. |
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approved time off
posted at 12/1/2010 7:55 AM EST
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Even if the employee had returned the FMLA forms and it had been approved, the most protected time this person would have is 12 weeks. Much less than the 6 months you have given already. Even if the employee never got the FMLA, it would still be a "no harm no foul" since he/she got the protected time off in the first place. He/She does not now get ANOTHER 12 weeks just because they fill out the forms now. (The only exception would be if they JUST became eligible but I highly doubt they have worked the requisite 1250 hours in the last year if they have been out for 6 months).
Suppose the disability also falls under ADA. Even ADA doesn't require unlimited time off. Your best move would be to send them a certified letter stating that all protected leave has been used and their employment will be terminated if they do not respond or return by x date. |
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approved time off
posted at 12/1/2010 8:02 AM EST
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
In addition to rruperts excellent points, you are also in the "dangerous precedent setting" territory in your handling of this situation. You've let this employee take virtually unlimited time off. What happens when a similar situation arises with another employee? Is that second employee going to demand the same? |
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approved time off
posted at 12/1/2010 8:05 AM EST
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
http://www.hrmorning.com/good-news-dol-reverses-ruling-on-notice-for-fmla-leave/
You might also check out this DOL opinion letter about call in policies...even for those on FMLA. I wish I could remember the name of the court case about back dating FMLA as long as it doesn't take benefits away from the employee. You do need to look at any information that you might have (say medical forms under a paid disability plan,etc.) to see if they gave you enough to auto-designate it as FMLA. |
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approved time off
posted at 12/2/2010 4:20 AM EST
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Posts: 79
First: 12/20/2004 Last: 2/17/2011 |
Have they been out 6 continuous months? They have already used up all of there FMLA and the time should have been applied to it, you do not have to have a formal form filled out if you know it was for an FMLA acceptable reason. Are they on short or long term disability and have they been providing the carrier with medical documentation? If they are on leave you have to follow whatever your company policy is on how long until you terminate, as long as it was after the 12 week FMLA period that should be your next step. |
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