Under limited circumstances, employees who aren’t actually eligible formay become eligible if their employers tell them they are.
That’s why you should tell employees that you won’t have a definitive answer about whether they can takeleave until you have checked on their eligibility. That requires reviewing time records, any medical certification and the company’s status as a covered employer.
Recent case: Jodi Manser called in sick when she hurt her back and had to go to the emergency room. She told her supervisor she couldn’t work her scheduled shift. The supervisor told her to take as much time as she needed to get better. Then, after concluding Manser wasn’t due any leave, the employer fired her.
She sued under the FMLA, claiming the employer had approved her time off and therefore couldn’t now claim she wasn’t eligible.
A jury concluded that Manser wasn’t eligible because the employer didn’t have 50 or more employees, the FMLA threshold. Now the judge handling the case has said the verdict will stand because the supervisor’s statement that she should take the time she needed was not an explicit declaration that Manser was eligible for FMLA leave. (Manser v. Sierra Foothills Public Utility District, No. 08-1250, ED CA, 2010)
Final note: You can provisionally approve time off, pending medical certification and other eligibility assessments. Just make sure the employee clearly understands that her time off may not be FMLA leave. She’ll have to take the risk that the absence may count against her.
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