If your organization is generous about extending leave beyond the 12 weeks of unpaid time off the
The best part: According to a recent 11th Circuit Court of Appeals decision, you don’t have to abide by the FMLA’s reinstatement rules if employees have already used up their protected .
Set whatever requirements and conditions you want for taking additional time off. You do, however, have to make sure you apply your rules evenhandedly—and don’t single out members of any particular protected class for less favorable treatment. For example, you can’t deny additional leave to pregnant women or new mothers, while routinely allowing additional time off for men with heart conditions or other medical problems.
Recent case: Lisa Thompson, who is black, worked in a hospital child care center. She used up her 12 weeks of FMLA leave and then applied for a leave of absence under the hospital’s extended-leave policy.
The hospital conveniently referred to this leave as “non-FMLA leave” and provided a copy of its policy to each employee. In fact, Thompson attended a special training session on the hospital’s FMLA and non-FMLA leave policies a week before she took more time off.
The non-FMLA leave policy clearly stated that employees taking additional leave of 30 days or less would return to the same jobs. Leave lasting between 31 and 90 days did not carry a guarantee. Instead, the policy said “the hospital will make an effort to return the employee to the former position or in the same department and classification.” It also said that if there were no position available, the employee would be terminated.
Thompson couldn’t return within 30 days, and the hospital filled her job.
She sued, alleging race discrimination. But she couldn’t point to a single person outside her protected classification who had been allowed to return after a longer leave. The court tossed out the case. (Thompson v. Baptist Hospital, No. 07-14188, 11th Cir., 2008)
Final note: This case shows why it’s so important to run FMLA leave concurrent with other leave in order to run out the FMLA clock. Employers have to designate time off as FMLA time or else leave will continue to accumulate. If that happens, employees effectively extend the time they have job protection.
For example, assume an employee has pregnancy complications and takes sick leave to cover six weeks of bed rest. You should count the time against her FMLA entitlement (because she needed the time to deal with a serious health condition related to pregnancy). She then gives birth, and you expect her back six weeks later. If you hadn’t counted the six weeks of prenatal leave against her FMLA allotment, she would now have 12 weeks of protected FMLA leave after giving birth. And that’s 12 weeks during which you must hold her job.
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