Fmla Eligibility-three Major Shifts

Three Major Shifts in the FMLA eligibility timeline for both employers and employees Change has arrived with the new FMLA regulations for employee FMLA eligibility standards and employer leave notice 1) Employees don’t need to be working for 12 months prior to FMLA leave You may say to yourself, “Well, we comply with the FMLA eligibility regulations.” But many of you have a common scenario where you have somebody work for you for a couple of months and then they get injured. It could be a work-related injury. Take the example of an employee whose worked for ten months and gets injured, if you give that person time off on a leave of absence that is not covered by the FMLA because they have not qualified for the FMLA, what do you do when that person all of a sudden hits the 12 months of service? The 12 months of service requirement under the FMLA regulations simply requires 12 months of employment. FMLA eligibility does not require 12 months of active employment. The 12-month period encompasses a period of time that the person is technically employed by you on the books even if the person is not reporting to work, such as on a vacation or in this case, a non-FMLA leave of absence. Under the new regulations, the rules say that the determination of whether somebody is eligible for FMLA leave, under the 12-month eligibility requirement has to be made as of the date that leave commences. What that really means now is that when somebody is out on a non-FMLA leave, and while they are out- they meet the eligibility requirements, any period of time taken after the FMLA eligibility kicks in ends up becoming FMLA leave. An example of the new FMLA eligibility standards Bob has been with you for 11 months, gets injured on the job and you give the person a one-month leave of absence. That one-month leave of absence is not covered by FMLA because Bob hasn’t been with you long enough.

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However, as the person approaches 12 months with you, the person says that, “Gosh, I'm really not, you know, recovering as quickly as I thought. I need more time off.” Any period of time that that person is approved for leave beyond 12 months eligibility ends up covered under FMLA so long as that person proves to you that the person has a qualifying condition. You do not get to go back in time and re-characterize that non-FMLA leave as FMLA leave There is an inherent unfairness here that for a new employee who you do good things for could ultimately end up getting far more leave than somebody who had been with you for several years and then wanted to get FMLA leave because you would end up giving the person a non-FMLA initially, that then rolls over into the potential for 12 more weeks. That's how that provision works. The other thing to keep in mind from a policy standpoint, you may want to give some thought as to the extent to which or the regularity with which you give non-FMLA leaves of absence to new employees because you have to realize that given this new rule, if you give somebody leave not covered by FMLA, you could end up obligated to provide leave to that person once they hit 12 months of service with you.

2) New FMLA regulations eliminate technical violations and no longer penalize employers for not identifying leave The new FMLA regulations released in January 2009 eliminate the penalty provisions that were associated with an employer who failed to properly give notice to an employee of that employee’s FMLA eligibility when an employee provided correct information. The prior regulations in numerous places stated that if an employer forgot to properly designate FMLA leave, made a mistake in identifying an employee’s eligibility ,or gave wrong information, the regulations stated that the employer would be penalized by not being able to designate any of the time as FMLA leave nor taking any adverse action against the employee. Ragsdale decision This was the concept that formed the basis of the Supreme Court’s decision in 2001 Ragsdale vs. Wolverine, which many of you will recall was a court decision where an employee had been given several months of leave. Finally, the employer said, “Enough is enough. We have to terminate you if you can't come back.” The employee sued and said, “You

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owe me 12 weeks of FMLA still because you never properly designated it.” The ultimate outcome of the Ragsdale decision was that the Supreme Court said that those FMLA regulations, which provided for all of those technical violations, were beyond the scope of what the FMLA provides. If an employer makes a mistake, it's not going to be in and of itself held against the employer. All of those technical violations have now been of the FMLA regulations. In the new FMLA regulations, is that when an employer makes a mistake and fails to properly identify employee’s eligibility or fails to properly designate FMLA leave, the employer is potentially subject to an interference claim for those mistakes. Employers don’t have to worry about the automatic technical violation. What the employee would have to prove to you if you end up making a mistake in terms of calculating eligibility is figuring out whether or not the employee can prove that your actions or your violations somehow prejudiced the person or interfered with the person’s ability to get FMLA leave. The good news is if you make one of these little mistakes and then realize it and fix it, it's very likely that we would be able to successfully defend against an interference claim without worry about these technical violations that had been in the prior FMLA regulations.

3) FMLA eligibility headcounts now has to take temps into account Joint employment is an issue with headcounts and FMLA eligibility. The prior legal framework had stressed that when employees are jointly employed and you're looking at the calculation of 50 employees within 75 miles, to figure where the employee’s worksite is and who is responsible for making sure that FMLA benefits are provided, you have to look at the location of employee’s primary employer worksite. Using the example of a temporary employee, the person’s primary worksite was going to be the worksite from which the person is employed or assigned. For your temporary employee, the general primary worksite is going to be that temp agency because that's the place for which they received their assignment. The new FMLA regulations have slightly altered and added a provision to FMLA eligibility. It says that where the employee has physically worked

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for at least one year at a facility of a secondary employer, that employee’s worksite is the facility of the secondary employer. It would be your worksite. This is important because now, you have to look at your worksite to determine whether or not that employee may be eligible for FMLA leave. It's a slight twist align where you look to determine FMLA eligibility or in this case, temporary employee eligibility. There's also a new change under the final regulations on FMLA eligibility, which talks about the reference to professional employer organizations. PEO, a Professional Employer Organization, and FMLA If you do that, those PEOs are not going to be joint employers with you and will not share in the FMLA eligibility, responsibility, or obligation that you have unless the PEO takes on the responsibilities of hiring, firing, directing or controlling your employee. If any of you use PEOs and you're trying to figure out to what extent you may have shifted some of the burden or responsibility of FMLA compliance, you need to take a hard look at the kind of responsibility that PEO takes on versus what your responsibility is and whether perhaps some of those shifts in obligation have been reflected in the contracts that execute with your PEOs.

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