Here are three questions on the Family and Medical Leave Act.
They are answered by Morganville, NJ, management consultant John McNamara.
Briefly, the FMLA requires that employers with 50 or more employees allow up to 12 weeks’ unpaid, jobprotected leave for medical and family reasons.
FMLA time on top of vacation time
A staffer returns from a two-week vacation and asks for the full 12 weeks of FMLA leave.
Can the office count the two weeks of vacation as part of the 12 weeks?
It’s too late for that, McNamara says.
The office can require everybody to count unused paid leave time as part of the FMLA leave, but not what’s already been used.
If the staffer had requested the leave before going on vacation, yes, the office can say the vacation time is part of the 12 weeks.
But when a request comes in after all the paid time has been used up, there’s not much to be done about it. The office has to give the staffer the full 12 weeks of FMLA leave. The vacation time can’t be applied after the fact.
And yes, that means the employee holds the cards.
A staffer can use up the full vacation time and personal time, all the while planning to request FMLA leave afterwards. There’s nothing the office can do at that point. Too bad.
Foreseeable leave for children
Can FMLA leave be foreseeable when it comes to caring for children?
When the need for leave is foreseeable, the employee has to give the office 30 days’ advance notice, or if 30 days isn’t possible, whatever is practicable.
But with a child, that’s rarely possible, McNamara says. The leave is foreseeable if the child has a history of the illness now at issue and time has been taken off in the past because of it and the parent knew that the additional leave would be necessary.
But when a doctor says “your child has to go into the hospital tomorrow,” the office can scarcely come back with “you have to give us 30 days’ notice” or “you can’t take any FMLA leave until this project is finished.”
The main concern is to be consistent. Don’t give special consideration to one staffer and require another in the same circumstance to give notice. That’s an invitation to a discrimination claim.
Be human and use common sense. FMLA leave is unpaid leave, and most employees aren’t anxious to lose the pay. What’s more, most employees don’t want to disadvantage their employers by being out. When somebody needs leave immediately, grant it, and if the firm needs that person’s services, look for options such as working part-time or working from home.
Firing after the leave is up
A temporary replacement comes in for a staffer who is out on FMLA leave and gives far superior performance to what the employee has ever done.
Can the office terminate the staffer before the leave is up?
Absolutely not, McNamara says.
“The office cannot fire an individual who is out on FMLA leave until the leave expires.” That’s true no matter how good the replacement has been.
However, that doesn’t mean the office can’t keep the replacement in the job. It can do exactly that – but only if it brings the FMLA staffer back to a similar job with the same pay and benefits. And if the similar job carries a lesser title or position, the salary and benefits can’t be decreased.
On the other hand, suppose the office wants to keep the FMLA staffer in the job but wants to set higher performance standards. Can it do so?
Yes. It can set new performance standards and require the staffer to meet them. But in fairness, it needs to outline what changes are necessary and give that person whatever training is needed plus a reasonable amount of time to get up to speed.
As to what’s reasonable, that depends on the difficulty of the new requirements. “A rule of thumb is no less than 30 days – and to be safe, 90 days.”
“It’s absurd and unreasonable” to demand that somebody make a complete turnaround in, say, 10 days, he says. Nobody can make “any significant change that’s consistent” in less than 30 days.
Two final cautions.
First, document the new performance standards and when and how they are explained to the staffer.
And second, document that there is a business reason for them, perhaps that they are necessary for improved client service, cost savings, or whatever. Otherwise, the change could be considered retaliation for taking the leave.
Counting the partners
Do the partners ever get included in the 50-employee count?
Generally, anyone who is paid a salary is included in the employee population. But anyone who is an owner and is paid a part of the profits is not.
The title alone doesn’t make the difference. Some firms have senior partners who get a salary regardless of the overall profits or losses. They have no ownership. They are partners in name but employees in fact and should be included in the count.
“It’s a gray area,” McNamara says. And the safest approach is to err on the side of caution. If there could be any doubt about their status, count them.
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