Human Resource Blog

FMLA

If an employee runs out of FMLA time and the employer allows him/her to take off extra time after her leave, is the employee now supposed to allow that same extra time off for all others who take FMLA it they need that extra time?

Yes, under federal law you must provide the same benefits to all employees regardless of race, color, sex, religion, disability, etc. If you provide benefits to one employee and not to others, you are probably guilty of illegal discrimination, even if that was not your intention. This is called de facto discrimination, when members of one group have better benefits than members of another group.

Example: You allow employee Sue to take an extra 2 weeks of time off after her FMLA expires. You do not permit other employees including Dan, Mike and Cindy to take additional time off. You have discriminated against Dan and Mike based on sex, because male employees are not being given equal benefits. You have discriminated against Cindy based on religion, because she is Buddist while Sue is Catholic. You have discriminated against Mike based on race or color, because Mike is Caucasian while Sue is African American.

Many states also have similar discrimination laws.

When you offer a benefit to one employee, you are establishing a precedent. Generally, you need to offer the same benefit to other employees, or be sued for illegal discrimination. In addition, a federal law requires that if you offer a benefit to some employees for medical leave, you offer the same benefit to all pregnant employees.