Absence management comes in many different shapes and sizes. Oftentimes issues arise in workplace regarding absence management or FMLA and the intricate compliance laws and requirements may make handling the issue more complicated than expected. ERC’s Help Desk compiled a list of frequently asked questions we receive from our local members and with the help of CareWorks, here’s the answers to those questions:
1. If we hire a temporary employee do we have to count their temp time toward FMLA eligibility?
An employee is eligible to take FMLA leave when, among other things, he/she has worked for the employer for 12 months (which, need not be consecutive) and worked 1,250 hours in the previous 12-month period.
According to the U.S. Department of Labor, the time worked as a temporary employee does indeed count toward the 12-month service and 1,250 hour requirement.
Example: Company ABC, employs a temp employee by the name of Jon, beginning January 1, 2016. On May 1, 2016, the company decides to hire the temp as a full time employee. On January 15, 2017, Jon requests 6-weeks off for an FMLA related need. When verifying eligibility, in order to be compliant with the regulations, the employer must use Jon’s original temp date of hire and total hours worked when determining eligibility under the guidelines.
2. If my organization is not large enough to be covered under FMLA, how do I treat an employee that needs time off for medical reasons?
Even though your organization in not considered a covered employer under the FMLA guidelines, there may still be applicable federal and state leave laws you need to be aware of that cover smaller employers.
For example, employers with 15 or more employees are responsible for following the federal guidelines of the Americans with Disabilities Act (ADA), as it prohibits discrimination against individuals with disabilities. Employers must provide reasonable accommodations to qualified applicants or employees.
A reasonable accommodation is any modification or adjustment to a job or the work environment that will enable an applicant or employee with a disability to participate in the application process or to perform essential job functions. Under the guidelines, temporary leave is considered a reasonable accommodation (except for employees who request time off for a pregnancy. This condition is not considered a disability under ADA.) .
3. Employee called off for 3 days; do I need to issue FMLA paperwork?
As a best practice, CareWorks Absence Management recommends for employers to have their employees report an FMLA claim when the employee misses more than three (3) consecutive days of work due to a workplace accident or illness. This allows the employer to remain in compliance with notification requirements for FMLA under the guidelines.
4. If I hire remote-working employees and our organization has 50+ employees, is the remote employee eligible for FMLA?
An employee, who works remotely (75 miles or more from the employer's office), is covered under the FMLA, if the office to which the employee reports and from which assignments are made, has 50 or more employees working within 75 miles of its location. FMLA regulation 825.111, paragraph (2) applies to remote and other off-site workers.
The regulation states: "an employee's personal residence is not a worksite in the case of employees, such as salespersons, who travel a sales territory and who generally leave to work and return from work to their personal residence, or employees who work at home, as under the concept of flexiplace or telecommuting. Rather, their worksite is the office to which they report and from which assignments are made."
In other words, home offices may not be considered the work location for FMLA purposes. Employers must consider the physical office location that these remote employees report to, and receive their work from, as being the work location for FMLA purposes. Thus, if the remote worker's reporting office employs 50 or more employees within a 75-mile radius, and if he or she meets the 12-month and 1,250-hour requirement, the employee is eligible for FMLA leave.
5. Our PTO policy requires employees to take 4-hours at a time, if the employee takes FMLA leave and it’s less than 4-hour, can we enforce the 4-hour policy?
Under the guidelines, an employer’s paid leave policies may apply and must be followed by the employee, should the worker require taking accrued PTO during the FMLA leave. However, employers may not use their paid leave policies to discriminate or interfere with employees’ right to take FMLA leave.
In the question above, if the employee wants to take FMLA leave in less than 4-hour increments, the employer has the right to deny PTO benefits to the employee, while at the same time continuing to grant FMLA leave in less than 4 hour increments.
Should the employee want to receive pay, the employee has the right to voluntarily abide by the employers PTO policy and remain out the required 4 hours.
It’s important for employers to educate their employees about any procedural requirements or qualifying standards for the use of paid leave prior to the start of an FMLA absence.
6. If employee goes on short or long term disability, how long do we have to keep them on payroll before we can terminate them?
The answer to this question is the most unpopular response by all HR Teams and Managers, “it depends.”
Although, the 12 work weeks of job protected leave may have exhausted for the employee, the employee may be eligible for a finite amount of additional time off as a "reasonable accommodation" under the Americans with Disabilities Act (ADA).
Unfortunately, the ADA guidelines do not offer what constitutes a maximum length of time that would be considered “reasonable.” In these situations, it is best to consult legal counsel for termination advice.