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Keep track of all time off! Authorized leave counts toward employees’ FMLA eligibility

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in Employment Law,Firing,FMLA Guidelines,Human Resources

If you grant time off to employees who aren’t yet eligible for FMLA leave, take note: If they’re on your payroll, their time off counts toward FMLA eligibility.

That means that once they hit the one-year mark, they become entitled to those 12 unpaid FMLA weeks—and terminating them could launch an FMLA lawsuit.

That wasn’t always the case. Until the U.S. Department of Labor (DOL) issued revised regulations clarifying the issue last year, some courts took the view that only time actually spent at work counted toward the one-year requirement.

Recent case: On Jan. 2, 2006, Joseph Porcillo began working for Roma Foods as a district sales manager, selling pizza-related products to restaurants. In November 2006, Porcillo developed a lump in his abdomen. He went to his doctor, who immediately scheduled him for an operation to repair a hernia.

Porcillo asked to take all available sick and vacation days, plus short-term disability leave through the company plan. He expected to be off work a few weeks. Roma Foods approved his leave and extended it several times when his recovery slowed due to complications and an infection.

He finally returned to work after getting clearance from his doctors on Feb. 12, 2007. He was fired the next day for excessive absences.

Porcillo sued, alleging he hadn’t been informed of his FMLA rights and was entitled to reinstatement. He also claimed that his firing was retaliation for taking FMLA leave.

The company argued that it didn’t need to inform Porcillo of his FMLA rights because he was never eligible for FMLA leave. Therefore, Roma argued, he couldn’t have suffered retaliation either. It said that when he left work in November, he hadn’t worked a full year and therefore didn’t meet the minimum year of service requirement.

The court disagreed. It looked to the clarifying regulation issued by the DOL, which states that “an ineligible employee on non-FMLA leave may become eligible for FMLA leave while on leave (by meeting the 12-month requirement) and that any portion of the leave taken for a qualifying reason taken after the employee becomes eligible would be protected FMLA leave.”

Because Porcillo was out on approved leave, the time counted. The court also concluded that the clarification wasn’t a new rule, just the DOL’s explanation of an earlier regulation. Because it merely clarified, and wasn’t a new rule, it was applied retroactively to the leave Porcillo took in 2006 and 2007. The court ordered a trial. (Porcillo v. Vistar, No. 3:08-CV-1090, MD FL, 2010)

Final notes: Porcillo’s immediate supervisor also testified that he had never heard of the FMLA until after Porcillo was terminated. That ignorance may have contributed to the problems in this case. Porcillo never actually asked for FMLA leave because he apparently didn’t know about it, either. The fact that they didn’t know about the law doesn’t change a thing. Employees can still sue for interference and retaliation even if they didn’t know at the time that they might be eligible for FMLA leave.

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