I have a new employee who was absent for 1 week because her grandmother had an accident and she needed to take care of her. Our company does not offer sick days, but only accrued annual leave. We told her that her days missed work has to be deducted from accrued annual leave of 6.67 hrs per month.
Are there any FMLA regulations that says that company have to offer employee paid leave for that time she has missed work?
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Your employee, being new, is not entitled to FMLA. She must have worked for at least 12 months and worked for at least 1,250 hours during the preceding 12 months.
Leave under FMLA may consist of unpaid leave but some employees may require the employee to substitute vacation or sick leave for any part of the 12-week FMLA leave period, in which case it now becomes paid leave. However, if your state or local law provides greater family or medical leave rights to employees you will need to go by that law.
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Shirley on
3/27/2008 7:57:46 AM
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It is my understanding FMLA only guarantees unpaid leave. Take a look at http://www.dol.gov/esa/regs/statutes/whd/fmla.htm and/or http://www.dol.gov/esa/whd/fmla/
Here is the section I think will answer your question:
(c) UNPAID LEAVE PERMITTED. -- Except as provided in subsection (d), leave granted under subsection (a) may consist of unpaid leave. Where an employee is otherwise exempt under regulations issued by the Secretary pursuant to section 13(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(1)), the compliance of an employer with this title by providing unpaid leave shall not affect the exempt status of the employee under such section.
(d) RELATIONSHIP TO PAID LEAVE.--
(1) UNPAID LEAVE.--If an employer provides paid leave for fewer than 12 workweeks, the additional weeks of leave necessary to attain the 12 workweeks of leave required under this title may be provided without compensation.
(2) SUBSTITUTION OF PAID LEAVE.--
(A) IN GENERAL.--An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for leave provided under subparagraph (A), (B), or (C) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection.
(B) SERIOUS HEALTH CONDITION.--An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or medical or sick leave of the employee for leave provided under subparagraph (C) or (D) of subsection (a)(1) for any part of the 12-week period of such leave under such subsection, except that nothing in this title shall require an employer to provide paid sick leave or paid medical leave in any situation in which such employer would not normally provide any such paid leave.
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AEAP on
3/26/2008 6:50:15 AM
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The answer is either take leave, advanced leave, or leave without pay. Visit the Department of Labor website dedicated to the FMLA. It can be found at http://www.dol.gov/esa/whd/fmla/. Your answer is right there under the synopsis--"Covered employers must grant an eligible employee up to a total of 12 workweeks of UNPAID leave during any 12-month period for one or more of the following reasons…" The emphasis is mine. In other words, the employee is entitled under certain circumstances to 12 weeks of leave without pay. If you are granting her paid leave in advance, you indeed work for a generous company. The choice is really up to the employee--leave with pay or leave without pay.
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AEAP on
3/26/2008 6:47:51 AM
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To the best of my knowledge, if the employee has paid leave time, it can be used during a time of FMLA, but if the employee does not have any paid leave time (days off, etc), then they are not entitled to any funds due to FMLA.
The main idea behind FMLA is to keep the employee's position available to them for 12 weeks. After that time, the position can be posted unless a satisfactory arrangement has been made between the employee & employer.
In this case, depending on your company policy, I would think that a new employee is still under a new hire status, and does not have any benefits, which would include paid time off.
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Bonita Smith on
3/25/2008 2:21:27 PM
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FMLA only requires unpaid leave and the law permits the employer to require the employee to take ACCRUED paid leave. The employee also has to have been with the company for 12 months. And I believe under the law a grandparent is not consider immediate family. Check out www.dol.gov for more info.
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Christine Adams on
3/25/2008 1:55:02 PM
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I would question paying her at all. If she is a new employee - I assume she hasn't had the opportunity of accruing. Also, there is no edict that emergency leave needs, or qualifies, for reimbursement if you have good policies in place that stipulate the notice required to access vacation/holiday payments.
As to FMLA, I am not sure that grandmother is a qualified recipient.
This sounds to me like more of a question for your legal department than this forum - however, they are great questions and you are clearly looking out for the best interest of yoru department.
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Jaisend on
3/25/2008 1:49:37 PM
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You do not have to pay for her time off. She uses whatever leave she has accrued or she is on leave without pay (LWOP).
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Anonymous on
3/25/2008 1:44:41 PM
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