Comments on: Sneak peak at 7 major FMLA revisions

By: Ram

Ram — Sun, 28 Sep 2008 06:25:58 +0000

I keep hearing that a new FMLA posting is due to be released to replace the old one. I first heard that it would be released in July, then October. Do you know if or when the new version is due to be released.

By: james

james — Mon, 15 Sep 2008 05:18:04 +0000

I have a question, when I give notice of my attent to use fmla and I provide them the medical certification within the 14 days as the company mandates, how long are they to take to approve or deny my request. If they deny my request, then the time while I am off can be counted against me so I have a really hard problem to take the time off and take a risk they will approve or not and if they dont, then all the time that was miss they can go and use that time missed against me.

By: Mary

Mary — Tue, 12 Aug 2008 13:11:36 +0000

My understanding of this notice is it is for “designating” the leave as FMLA, which prevents the employee from taking more time than his/her 12 weeks of unpaid leave. For example, one of our brilliant division managers never told HR an employee was out on leave for a serious medical reason (hospital), the employee was eligible for FMLA and now this employee is still entitled to all 12 weeks of FMLA instead of 9 weeks. We did not know when he returned until the following Friday, so we could not designate it as FMLA because the time frame (2 days?) had elapsed when an employee returns from leave. If we had known the employee was out we could have “designated” the leave as FMLA. If the Certificate of Health Care Provider was returned and it was determined it was not a serious health condition as defined by FMLA, then we can deny the leave and take the appropriate action.

By: David

David — Tue, 12 Aug 2008 12:27:51 +0000

Richard: My understanding is that the five day employer response time is for the purpose of establishing eligibility pending the Physician certification i.e. the one year and 1250 hrs piece. Thereafter, FMLA can be denied anytime the physician cert. does not meet criteria be it the initial cert. or subsequent updates. Does anyone disagree?

By: Tammy

Tammy — Tue, 12 Aug 2008 12:23:03 +0000

I believe that the first example is incorrect. You indicate that “In order to be eligible for FMLA leave, an employee must have 12 months of service with his or her employer and have worked at least 1,250 hours during that 12-month period.”

To be eligible for FMLA leave an employee must have been an employee of the employer for at least 12 months (does not have to be consecutive service), and have at least 1,250 actual hours worked during the preceding 12-month period. (§825.110). So, its not during the initial 12 month period that the 1,250 hours must be worked, but during the 12 months prior to the FMLA event.

By: RichardParker

RichardParker — Mon, 11 Aug 2008 18:44:37 +0000

The section on the Employer Notice requirements is still not clear enough. If an employer must give an employee 14 days to return medical certification, then how can you definitively approve an FML request within 5 days? We have had several where the medical certification does not agree with what the employee told us regarding the prognosis and the duration.

By: Hillery

Hillery — Mon, 11 Aug 2008 17:41:38 +0000

Rachael & Mark,

Is Jenny considered to be a “key employee”? If so, her job may would not be protectd by FMLA as outlined in section 825.218. Please let me know your thoughts.

By: D

Mon, 11 Aug 2008 17:27:14 +0000

Mr. Mark another thing to consider is that she is working part-time and those hours count as hours worked, extending her FMLA by however many hours she has worked.

It is a tricky situation you are in, but it is not unanswerable.

As for the new FMLA laws, hopefully they help, although I didn’t see anything about the intermittent part, which is where I find a lot of trouble lies.

By: Rachael

Rachael — Mon, 11 Aug 2008 17:04:09 +0000

Mr. Mark,

You have to provide a little more detail. Is Jenny eligible/protected under FMLA? Does your state have any additional leave laws that provide her protection? Does your handbook have any additional leave policies that she can cite?

If Jenny’s FMLA has expired then you are not required to hold a position for her. However, things are never that black and white. You need to know when she is going to report back to work (have that information certified by a doctor), then you need to determine if your organization can accommodate the additional leave of absence request. If she is only asking for a couple more weeks, then under the ADA you may have to return her to her or a comparable position and unfortunately the newer employee will need to be transfered or terminated. If Jenny comes back and says she needs another six months, well then that certainly shows undue hardship on the employer side and you can terminate the employment with Jenny. My recommendation is to take this one step at a time, as everyone knows with FMLA you cannot assume the course of events to take place and then you misjudge your responsibility as an employer. Hope this helps!

By: Mr. Mark

Mr. Mark — Mon, 11 Aug 2008 16:43:58 +0000

I have an employee that has now been out for almost three months due to a blood clot, lets call her Jenny. By law how long are we supposed to hold a position for Jenny? Because of the length of time and the importance of Jenny’s position I was forced to hire someone else to complete her duties. In the mean time Jenny has been doing some part time phone work for us from home. However, she is expecting to come back once she feels she has been able to recooperate.

At this point I do not have a position for her to come back to. I can’t afford to create a position and pay her the wages she was making prior to her leaving. I want to make sure that I am following the law by protecting her and us. Please advise.

Thanks