Human Resource Blog

This is a matter of your company policy as an employer, not employment law. There is no law that any employer has to take action against an employee who is late to work. But most do, for obvious reasons. It can be difficult or impossible to maintain business operations and deliver good service when employees are late.

How you treat exempt employees depends upon the industry. By law, if an exempt employee works part of the day — even 5 minutes — you must pay him or her for the full day. So you cannot dock an exempt employees wages because he or she comes in late.

In some industries it is not a big deal if the exempt employee comes in late. An exempt real estate agent or accountant may simply stay a little later to get the job done. In that case, you may want to be flexible with employees and not discipline an exempt employee for tardiness. In other industries, it can be a big problem if the exempt employee is late. Suppose a restaurant manager is late unlocking the store, resulting in the employees starting work late and the restaurant not opening on time. That could be a major problem.  In that case you might want to discipline the manager (an exempt employee) for not being on time.

Whatever your policy for tardiness of exempt employees is, it should be consistent.

Actually, you are mistaken. In order to qualify for the federal FMLA, your employee  must have worked for 12 months — but the months need not be continuous. So an employee could work for 9 months, then take time off and work for the same employer for another 3 months at some point. As long as the 12 total months of work occurred within 7 years, the employee would be covered by FMLA.

However, you are right — worked means worked. In this case, it sounds like your employee worked for 9 months and then was on disability for 3 months. The employee is not eligible for FMLA.

Just so you know, even if the employee were eligible for FMLA, most employers would have it run concurrently with workers comp, so he would be eligible only for 12 weeks of leave total.

Our only additional suggestion is that you check to make sure there is no state family leave law covering your company. Other than that, it sounds like you are handling this appropriately. Because your small company is not covered by FMLA, the employee was not entitled to any paid or unpaid time off, over and above the absenteeism that you would normally allow.

We will clarify that apparently the position is not being eliminated — the employee is being terminated for lack of attendance. That action is completely justified and most likely lawful. Note that if you have more than 15 employees, and this worker has a permanent disability, she may be entitled to additional unpaid time off under ADA.

It is also important for you to realize that you have now set a precedent of giving employees with a medical problem unpaid leave. By law, you will have to grant the same amount of unpaid leave to other employees, or to any employee who is pregnant.

No, this is absolutely not true. As the employer, you decide how the FMLA year is tabulated.

The federal FMLA or Family and Medical Leave Act entitles employees to 12 weeks of unpaid, job protected leave in a 12 month period. There are 4 ways an employer can count that *12 month period.* By far the most common is for the 12 month period to commence on the first day the employee takes FMLA.

In your example, suppose Bill filed for intermittent FMLA on October 10, 2009. His 12 months would end on October 9, 2010. Bill would have a total of 12 weeks of FMLA to use during that period. If he exhausts 12 weeks of FMLA in March, he has no more FMLA until October 10, 2010.

A few employers use the calendar year as the basis for tabulating FMLA. That is one of the 4 legal methods of counting FMLA. As you noted, this method has drawbacks. When this method is used, theoretically an employee could take 12 continuous weeks of FMLA in October, November and December, and be entitled to another 12 continuous weeks of FMLA in January, February and March. This is why most companies do not use this system.

Note that once you choose a method of counting FMLA, you cannot change it for employees who are currently on FMLA.

Read more about this at:   http://www.dol.gov/dol/allcfr/Title_29/Part_825/29CFR825.200.htm#

Assuming that you are covered by the federal FMLA law, this leave probably cannot be designated as FMLA retroactively. There is no 2-day limit for designating FMLA under the current regulations.

Under the FMLA regulations introduced in early 2009, an employer can sometimes retroactively designate FMLA. However, the employer can take this measure only when there is no harm or injury to the employee from such an action. In this case, the employee could argue that if she had known the time she took off to care for her spouse in December 2009 to January 2010 was FMLA, she would have made other arrangements. (If the employee had taken that time off for her own illness, when she was unable to work, then the situation would be different.)

The bottom line is no, you cannot retroactively designate the December 2009 to January 2010 leave as FMLA.

Read more about this at:  http://www.dol.gov/dol/allcfr/title_29/Part_825/29CFR825.301.htm