Seriously? A FMLA Series, Episode 9

by Carla O’Sullivan

Spring Cleaning….A Mini Series!

YAY, I’m eligible! Wait…what does that mean?

Now that you’ve dusted off your posters and made sure everybody who should be informed is, let’s open the windows on the eligibility notice! How many times has an employee been told they are eligible and assumed that meant they are approved? When you communicate and how you communicate eligibility are equally important, as there are many components. Let’s break it down….

 

The Basics:   Eligibility

  • Eligibility must be communicated at the following events:
    • The first request for a leave that even might be qualifying (you won’t truly know until you receive paperwork).
    • If the employee requests leave for a new, but different qualifying reason, and their eligibility has changed. For example, the employee was eligible four months ago for migraines and they took a ton of time off, so they fell below 1250 hours worked and then request a new leave for their minor child who has a new allergy. The request is new and the eligibility status is different, so you have an obligation.
  • Good news – eligibility may be communicated orally or in writing.
  • It MUST be communicated within five (5) business days of the request or from the date that you learned that the employee leave MAY be FMLA qualifying.
  • You have to inform an employee what their status is. They are either eligible or not eligible.
  • An employee may be not eligible for one or more reasons, in that perhaps they have not worked the requisite hours and they do not have a full year of service. You must inform them of at least one of the reasons.
  • Here is where it gets a little sticky – If the employee IS eligible, you may NOT recheck the employees eligibility for that specific reason (ex: Mom’s heart condition) for one year from the date that you established their eligibility. However, if the employee has a new request for a different potentially qualifying reason, you must check their eligibility for that specific reason.
  • Each time you are required to inform an employee of their eligibility status, you must also provide them their Rights & Responsibilities notice in writing.

 

The Ya, but…:

Eligibility Notice:

  • Although you can provide notice verbally, if things ever go south, having written proof that you communicated to the employee is always where you want to be.
  • Any knowledge on your part that an employee is absent for something that MAY qualify, your management has to trigger the process. Yup, if you hear a coworker say “Ya, Kim is glad she has vacation time available, because her mom’s really sick.” — that’s enough….you’re in the game! Unless Kim had been out previously on FMLA leave to care for her mom, Kim does not have an obligation to tell you her absence is due to a potentially qualified leave.
  • You may have an employee who is legitimately taking time off for their own migraines, but has fallen below eligibility requirements and therefore, any absences for their child’s newly developed allergy is not covered under the FMLA and you may not reduce their FMLA bank of time, even if they are taking the time and using vacation or sick leave time.
  • You MAY re-check eligibility for the same qualified reason on the first absence that occurs after the one year anniversary of when you last checked it. Even if an employee has an approved certification on file, you are allowed to re-check eligibility at this time.

Yes, seriously, eligibility can be confusing and very circumstantial based on the employee situation(s). The best tip I can give you here is to ensure that you have a clearly defined ‘Eligibility Established Date’ for each reason an employee has an FMLA need. As good ol’ Ben Franklin said “An ounce of prevention is worth a pound of cure”, so make sure the data you maintain is your prevention from a pound of legal bills.

 

Supporting Assistance: