Q. Can an employee have more than one FMLA occurrence within a 12 month FMLA period? I.e., 12 weeks for a spouse + 12 weeks for a parent all within the same year?
A. An individual is entitled to 12 weeks total for care of a family member during one 12 month period subject to the counting method of employer, i.e., calendar year, rolling period, etc. An employee does not get 12 weeks each for different family members.
Q. What happens if an employee is terminated for reasons unrelated to FMLA but uses FMLA as a claim for improper termination and retaliation under FMLA since a child was hospitalized?
A. Provided the employer has legitimate and preferably documented reason for adverse employment related action that is unrelated to FMLA, such employment action is defendable. The key of course is documenting the legitimate business reason.
Q. The employer knows of a leave that would qualify but the employee has not asked for FMLA.
A. In this instance, the employer would have an obligation to make a reasonable inquiry to determine whether the leave is FMLA qualifying despite the fact that the employee did not ask for “FMLA” leave specifically.
Q. If someone is in need of time off (i.e., gives birth) but is ineligible for FMLA as of their first day missed – but becomes eligible soon after – are we required to provide them with a full 12 months of FMLA or are we able to back out the time already missed prior to becoming eligible? I.e., person employed 11 months and worked 1,250 hours once 12 months have passed are they entitled to 8 weeks of FMLA or a full 12 weeks?
A. Once an employee has satisfied the minimum eligibility requirements – 12 months of employment (which do not need to be consecutive) and 1,250 hours worked in the 12 months immediately preceding the request for the leave – he/she is entitled to the full benefits of the FMLA.
Q. An employee states they are leaving because they are stressed out and off to see the doctor. We send them the certification form for their doctor to complete. If they don’t return the certification form within the required timeframe and do not call us to indicate they are still in need of leave, at what point can the absence be considered job abandonment?
A. Employers should be careful in moving right to termination if the employee fails to return the medical certification form within the original 15 days. At a minimum, a follow-up notice giving additional reasonable time should be sent prior to terminating for job abandonment or the like.
Q. We currently request certification for all FMLA leave. If an employee does not want to take FMLA, but as the employer, we want it designated as FMLA leave, can we designate it as FMLA leave even if the employee does not return the medical certification form when we are requesting it for all other employees?
A. Yes. If you have enough information to determine the leave is FMLA qualifying then you may do so even absent the medical certification form. However, we can require that an employee return the medical certification form and if they refuse, absent extenuating and/or excusable reasons, discipline for his/her unjustified refusal.
Q. What about certifying FMLA when someone is out on a workers’ comp claim?
A. Note that FMLA leave can run consecutive with leave for workers compensation provided that the leave is otherwise FMLA qualifying.