Nancy Gunzenhauser Popper, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in HR Dive, in “Mailbag: What Are HR’s Options After Granting FMLA Leave to a Noneligible Employee?” by Katie Clarey.

Following is an excerpt:

Q: What happens if you go through the FMLA process — notices, medical documentation, approval — and later realize the employee isn’t eligible because they didn’t work enough hours?

When employers follow the leave designation process set out by the U.S. Department of Labor for Family and Medical Leave Act leave, they won’t likely run into this problem, according to Epstein Becker Green Member Nancy Gunzenhauser Popper. That’s because at the beginning of DOL’s designation process, employers fill out a form — WH-381, to be specific — that details an employee’s FMLA eligibility.

The form calls into question an employee’s length of service and hours worked, two essential components of FMLA eligibility. To qualify for FMLA leave, employees must have worked for their employer for 12 months over a seven-year period. They also need to have worked 1,250 hours within a 12-month period prior to taking leave.

The form will prompt employers to consider whether the employee in question meets those standards. “It’s an incredibly helpful tool for HR professionals to use,” Gunzenhauser Popper said. “Always remember to read it through completely instead of just checking the eligibility box … It will hopefully be a really good stopgap before you get too far into the FMLA process.”

When the stopgap works and employers realize an employee who has requested FMLA leave isn’t eligible for it, employers should proceed carefully, Gunzenhauser Popper said. The employee could be out provisionally before the employer has considered the absence, she noted. For instance: The employee may have encountered a health emergency causing them to miss work.

“It could be very useful for employers in those scenarios where there’s no advanced notice to pause before deeming the absence approved or unapproved so they can go through all the right steps,” Gunzenhauser Popper said. “You want to make sure you’re getting the FMLA approval done correctly.”

When the stopgap doesn’t work

Sometimes, however, employers don’t get the approval done correctly, and employees end up on FMLA leave when they’re not eligible. Before proceeding, employers must consider a number of factors, from separate leave laws to employee relations.

Employers must determine whether another law gives an employee job-protected leave akin to the FMLA, Gunzenhauser Popper pointed out. They could be covered by state or local leave laws. And if a health condition caused their absence, they may qualify for leave as an accommodation under the Americans with Disabilities Act.

What should employers do if no law guarantees the leave? In this instance, employers should review their own internal policy. “The employer may have a written leave-of-absence policy that would give similar types of leave to employees who don’t qualify for FLMA,” Gunzenhauser Popper said. “That could be because they have too few employees in a location to be covered by FMLA or that they want to offer similar benefits to someone who hasn’t reached 12 months of service.”

Even if an employer lacks such a policy, it should consider how its response to the leave situation could impact employee relations. Revoking the leave could cause particularly unpleasant consequences, Gunzenhauser Popper noted.

“The employer will want to consider the fact that they were the ones to make the mistake,” she said. “The person may not have been legally covered under the FMLA, but depending on the reason for leave and if the leave was revoked, it may lead to potential claims by the employee that they were treated unfairly, particularly if others had been granted similar leave and they weren’t eligible.”

There’s also the possibility that revoked leave could sour the employer-employee relationship. 

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