Human Resource Blog

Yes, you should definitely change this policy. Your current policy would permit an employee who has 3 weeks of vacation and 3 weeks of sick leave to take 12 weeks of FMLA plus 6 weeks of paid leave per year. That is a total of 18 weeks, or 4.5 months every year — way too much leave. One of the intentions of FMLA was to be fair to employers by limiting the time an employee can take off to 12 weeks per year.

You absolutely can begin designating time as FMLA when it is for a reason that qualifies, and you should. Before you do so, however, you should issue a new written policy that specifies that the company will designate as FMLA any paid or unpaid time off for a qualifying reason.

Be aware that under the federal FMLA regulations, an employee is entitled to use paid sick leave while on FMLA, and may be entitled to use paid vacation following company policy. However, that time is still counted toward the total 12 weeks of FMLA.

With all due respect, you and the Executive Director seem to be treating this employee with kid gloves, and we do not understand why. This employee seems to be abusing you as her employer and calling all the shots in this relationship.

You do not mention which state you are in, so we are going to assume that no state family leave law applies, only the federal FMLA. We will also assume that the change in salary was not related to pregnancy or FMLA, but was genuinely related only to performance and business needs. We also assume that you have 50 or more workers within 75 miles, or are otherwise covered under FMLA. 

Under the FMLA, an employee must return the required paperwork within 15 days. If the employee does not do so, then the employee is not entitled to FMLA. The employee can be treated like any other worker who simply does not show up for 4 weeks, and be disciplined or terminated. Most employers would consider that any employee who was not on FMLA and who had not worked since July 7 had quit. Others would terminate the employee for nonattendance. You would be within your legal rights to do either at this point.

By allowing the employee to take almost 2 months of *extended leave* your Executive Director has created the precedent of another type of leave, in additional to FMLA, that all employees are entitled to. Nor were you legally required to continue the employees group health insurance during this *extended leave.*

Theoretically, the employee could inform you on October 7 that she will take 12 weeks of FMLA beginning October 8 to care for her baby. She would be entitled to do so, because from a legal perspective she has not yet used any FMLA.

One option would be for you to retroactively designate the time off as FMLA despite the fact that you do not have the required paperwork. From an HR standpoint, you may only be able to designate the 4 to 8 weeks that the employee was physically unable to work as FMLA, because you have waited so long to do so.

It is very poor practice to allow the employee to come and go at her whim, and decide for herself if the absence will be FMLA or an impromptu *extended leave.*Hindsight is 20/20, but it was probably unwise for you to introduce this change in salary to coincide with the return from maternity leave. To the outside observer, it certainly presents the appearance that you are discriminating against this employee due to her pregnancy, FMLA or because she is a parent. It would have been much wiser to implement the change a few weeks before the employee went on leave, or wait a few months after she returned. 

You are correct that meeting with you, even at the employees request, is work time. An exempt employee would be entitled to payment for the entire day, while a non-exempt employee would be entitled to payment for the hours worked.

In addition, no employee should be allowed to return to work after childbirth disability (or any other period of disability) without a doctors release - even for a simple meeting.

If the employee meets with you on one day, it does not necessarily deny her FMLA rights. (After all, none of this leave is FMLA yet.) However, it does make the FMLA intermittent, rather than continuous. The law requires that an employee be allowed to take intermittent FMLA for her own serious health condition, meaning pregnancy and childbirth disability. It does not require that an employee be allowed to take intermittent FMLA to care for a newborn baby. That type of FMLA can be continuous at the employers discretion.

A more important point is, why are you letting this employee call the shots? As the employer, you can simply tell the worker that you will discuss this with her when she returns to work on September 20. Or,if you feel it is in your best interests, you could schedule her for one day to discuss this matter, and designate all the leave prior to that point as FMLA. You could also let her know that any additional leave after the meeting will be designated as FMLA to care for her infant, and must be continuous.

The employee probably wants to know more about her new position and hours, to determine whether she wants to return to work or not. As an alternative, you could discuss this with the employee on the phone or via email to answer her questions, or you could tell her that you will discuss it when she returns.

The real question here is: What would be your preferred outcome with this employee? Do you want to retain her at the lower salary? Would you be happier if she were terminated or decided not to return from her impromptu leave?  

So your options are:  

1) Assume that the employee has quit because she has not been to work for 7 weeks and has not applied for FMLA.

2) Terminate the employee for excessive absenteeism because she has not been to work for 7 weeks and is not on FMLA.

3) Retroactively designate the time off as FMLA and

     a) Allow the employee to work for one day, with a release from her doctor, to discuss the changes. Let her know at that meeting that you are designating any additional time off as FMLA to care for a baby, and it must be continuous

Or

     b) Tell her that her time off has been designated as FMLA, and you will discuss the changes with her when she returns on September 20.

If you decide to meet with the employee, please do not let her dictate the terms of her continued employment to you. That seems to be what is happening here.

This is a complex issue, and we suspect there are additional important details, so feel free to post additional questions. 

The FMLA regulations do not specifically address the issue of trending, or Monday and Friday absences.There can be a legitimate need for trending in some cases. For example, some doctors do surgery on Tuesday, Wednesday and Thursday, leaving only Monday and Friday open for office visits. If the employee is taking time off to take an immediate family member to an appointment with such a doctor, those absences will always be on a Monday or Friday.

However, as an employer there is a mechanism in place for you to monitor trending under FMLA. The next time the serious health condition must be certified, attach a calendar to the form with a red x through each day the employee has used FMLA. Add the question: Is this pattern of absence consistent with the serious helath condition. Many doctors will recognize a faker and inform you if the employee is abusing FMLA.

FMLA is 12 work weeks. It varies depending upon the employees usual schedule. If the employee takes continuous FMLA, it is for 12 calendar weeks, that is 84 days (not 90 days as many employees believe.)

When an employee takes intermittent FMLA it is based on the employees usual work schedule. If the employee averages 30 hours per week, FMLA is 30×12 = 360 hours. For a 40-hour-per-week employee, FMLA is 480 hours.

If the employee has no set work schedule, it is based on the average hours worked per week over the past 12 months.

Current FMLA regulations require that the employer notify the employee in writing of his or her FMLA rights within 5 days of ANY absence that could be covered by FMLA, even a partial day. So you are in violation of those regulations. (It is always better to notify an employee who does not have a serious health condition, than to fail to notify an employee.)

So you should notify this employee immediately.

However, yes, in some cases the current FMLA regulations allow you to retroactively count time off as FMLA. This is permitted only when it does no harm to the employee. Usually that means that the employee was physically unable to work and would have taken the time off even if he had known it was being counted as FMLA. Time taken off for a doctors appointment cannot be counted as FMLA retroactively. The employee could argue that if he had known it would be counted as FMLA, he would have rescheduled the appointment.