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Multiple absences

Hi. I have an employee who has missed work for about 14 orthopedic surgeries since she started working here – not for any one reason like a MVA – she just seems to be addicted to surgery and the attention it garners. Ours is a very small department and we suffer when she is out. She has never been on FMLA for these, instead uses her PTO or STD. Usually, when she returns she then has a few weeks when she has to leave for various post-op visits, other MD appointments, physical therapy appointments or she just can’t work all of her scheduled hours because she’s “tired” or “not fully recovered”. Do we have any recourse?

The federal Family and Medical Leave Act (FMLA) entitles eligible employees to take up to 12 workweeks within a 12-month period of job protected, unpaid leave to care for newborns, newly adopted children and seriously ill family members, or to recover from their own serious illnesses.

If the employee has been allowed to use her paid time off or take unpaid leaves of absence for her medical conditions instead of FMLA leave there is limited recourse. Under FMLA regulations, retroactive designation is permissible if an employer fails to timely designate leave as FMLA leave as long as the employee does not suffer harm or injury as a result. Additionally, an employee and employer may agree to retroactively designate an absence as FMLA-protected.

Retroactive designations can place the employer at risk; thus, the best plan of action is to ensure future qualified absences are counted as FMLA leave.

Failing to designate an absence as FMLA leave can affect business operations as it sounds like it has in this case already. Assuming the employee has missed a total of 14 weeks of work throughout the year for her multiple surgeries and appointments, by failing to designate the time off as FMLA leave, the employee has been provided leave over and above what she is entitled to by law. Though she may exhaust her paid time off bank, she is still eligible for up to 12 weeks of FMLA leave since the previous time off was not designated as FMLA leave. Thus, she could potentially take 26 weeks of leave in the year, much more than what she is entitled to.

If the employee qualifies for FMLA leave, it is the employer’s responsibility to designate the leave as FMLA-qualifying and to give notice of the designation to the employee. Employees do not have the right to choose when they take FMLA leave. As soon as the leave of absence qualifies as FMLA leave, it should be designated as such, regardless of whether the employee wants the absence to count as FMLA leave.

Going forward, remember that the employee doesn’t have to specifically request FMLA leave. The employer must be aware of FMLA qualifying events and be able to ascertain if a situation meets such qualifications. If the employer is unable to determine if a situation qualifies under the FMLA, the employer may request additional information in order to make the determination. Absent extenuating circumstances, the regulations require an employer to notify an employee of whether the employee is eligible to take FMLA leave within five business days of the employee requesting leave or the employer learning that an employee’s leave may be for a FMLA-qualifying reason.

Since an employee’s 12 week FMLA leave entitlement can be taken all at once or on an intermittent or reduced schedule basis, it’s important to clearly document all FMLA qualifying absences and count them appropriately against the employee’s leave entitlement. Following FMLA regulations will ensure the employee is awarded only the leave time she is entitled to.

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This entry was posted on Sunday, August 3rd, 2014 at 6:56 pm and is filed under
Attendance Management, Human Resources Management, Labor Laws.
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