Forums
leave stretches over 1 year anniversary
Legal Forum
leave stretches over 1 year anniversary
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
Hi all,
We have an employee who was dx with breast cancer and had to have surgery - she went out on 9/28/10. Was supposed to be back in Dec. Even though she wasn't eligible for FMLA made the decisi
0
Cat:Topic ForumsForum:ForumId54
Cat:Topic ForumsForum:ForumId54Discussion:DiscussionId36952
Forums » Topic Forums » Legal Forum » leave stretches over 1 year anniversary
|
leave stretches over 1 year anniversary
posted at 3/30/2011 7:15 AM EDT
|
Posts: 9
First: 11/6/2008 Last: 3/30/2011 |
Hi all,
We have an employee who was dx with breast cancer and had to have surgery - she went out on 9/28/10. Was supposed to be back in Dec. Even though she wasn't eligible for FMLA made the decision to work with her. Leave was pushed to January - she was able to perform part of her job but not all of the essential functions from home - she is recovering but can't come to work or travel due to her low immune system. Being able to travel to visit customers and close business is an essential function. This was supposed to be for a few weeks. Everytime we asked - if was just another week, etc. She hit her year anniversary Jan of 2011. In Febuary her dr said she could not travel of come in to the office until June 2011. Since we cannot reasonably accomodate that - we had her go back on STD and told her we could not hold her position open any longer. She is fine with all of that - her main issue is the cost of Cobra. My question is - what is the impact of her hitting her 1 year anniversary during her accomodation & leave??? Do we need to give her 12 more weeks? Thanks, Penny |
|
|
leave stretches over 1 year anniversary
posted at 3/31/2011 9:02 AM EDT
|
|
Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
Did she work 1250 hours in the last 12 months? That is something to consider.
If I remember correctly any time prior to eligibility for leave can not be counted after eligibility...from the Regulations themselves: "An employee may be on ânon-FMLA leaveâ at the time he or she meets the eligibility requirements, and in that event, any portion of the leave taken for an FMLA-qualifying reason after the employee meets the eligibility requirement would be âFMLA leave.â under Section 825.110 So it would seem to me that you would be under law required to give her 12 more weeks from the day she became eligible. Unfortunately this is the case of the employer's generosity coming back to bite them. (I haven't read anything to show that the non-FMLA prior leave could be taken into account except under the 1250 hour in the last 12 months rule . Nork might have something in regards to this that I am not seeing in my research. What I have seen is you can backdate time taken under FMLA if they were eligible and you failed to mark it as FMLA time taken. The employer's mistake doesn't give the employee more time under that scenario.) Section 825.200 discusses the determination year. If you don't have one already set, then the one most favorable to the employee is the one that must be used. |
Forums » Topic Forums » Legal Forum » leave stretches over 1 year anniversary
