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Monday, April 13, 2009


I’ll try and make this quick and to the point…….I screwed up! I had completed the Employer Response to Employee presumptuously and this employee has not worked for us for a year. Technically, he is not eligible for FMLA. However, he has seen the approved form (don’t think he has a copy of it). My question is……am I able to shorten the length of the FMLA time to maybe 6 weeks instead of 12, since he really isn’t eligible at all for this? I know……VERY STICKY situation since I’ve already approved. HELP!!!

I'm happy you've admitted to your own screw up and not blamed anyone else. So sorry that you will never be in senior management.

Anyway, here are my usual disclaimers. I am not a lawyer. I am not an FMLA expert. I'm not even employed.

But, I think this is a case where you say, "Bob, when I filled out the paperwork previously, I forgot that you hadn't been with us one year yet. To be eligible for FMLA, you have to have worked here for at least a year. Therefore we can't grant you FMLA."

Over and done.

Now, not all leaves have to fall under FMLA. Surely you have a leave policy for non FMLA leaves? (Tell me you have a policy. It would warm my little evil heart.) Grant him whatever leave he would be eligible under that policy.

If you have no policy, you can do whatever you want, as long as you are consistent and fair. You can grant 6 weeks, or 12, or 26 or whatever. Just make it clear that this is a leave of absence that is not subject to the rules of FMLA. If you continue to carry his insurance during the leave, it's doubtful he'll care about the difference.


Erin M Taylor said...

I have to disagree with EHRL. Some cases (Headlee v. Vindra, Inc. and Nagy v. Tee Tee Toons, Inc. to name two) have gone in favor of the employee when the employer has granted FMLA to an ineligble employee (Nagy) or for an non-qualifying reason (Headlee) and then later denied FMLA; it's called the Estoppel Doctrine. Now there have been cases where the courts ruled on behalf of the employer too, so it's possible that the writer would have no problem if they now denyed FMLA. I would recommend they do a little more research and/or contact a labor attorney. I will add the disclaimer that I don't know if the recent changes to FMLA address this issue.

Jon Hyman said...

I will add that I do not believe the recent FMLA regulations address this issue, and I think your reader is taking a huge risk by denying FMLA leave without first getting a legal opinion on the risks involved.

Anonymous said...

So, senior management doesn't make mistakes? LMAO

Erin M Taylor said...

@ Anonymous - I think that EHRL was saying that senior managers don't take responsibility take responsibilty for their mistakes like the writer does.

inked HR said...

Senior management doesn't ADMIT to their mistakes....different.

We have granted FMLA leave prior to an employee being employeed for a year. Because the company I work for is WAY too nice. But since that is now a practice, we have to do it for everyone. So that is my word of caution.

Chris said...

Estoppel usually requires reasonable reliance on the promise. When was this employee told he could have leave? Yesterday? (probably no estoppel). A month ago after he has made certain plans? (potential estoppel).

It all depends on the circumstances.

Peter said...

EHRL: I'm so glad you are back! I discovered your blog right before you quit your job and was hoping you would be back!

FMLA Goof: I will echo what most others here have said: the rules have changed and it is definitely worth your time to research the ramifications of telling the employee that their leave is not FMLA. I would also add that if you don't have a policy for non-FMLA leaves, now might be a good time to make one.