FMLA
Posted: 21 August 2008 06:04 PM   [ Ignore ]
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If an employer had an employee on work restrictions that had him working a shortened workday, but the employer decided that to help the employee ‘get by’ it would pay the employee during the hours he is unable to work, would the company still be able to enforce FMLA?

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Posted: 25 August 2008 03:56 PM   [ Ignore ]   [ # 1 ]
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I would say yes the leave is FMLA - but it also depends upon your policy. If your policy states that the employee must use their sick, vacation or PTO benefits while on FMLA, then I do not see a difference between paying them full pay even though the employee does not work full time. If the employee worked part time and filled the gap in hours with PTO, the time taken would still be FMLA.

Also, I do not believe it is a good practice to pay people their full time wages when they work part time. Is this a practice that your employer plans to continue? If so, it could be expensive and discriminatory of it is decided that the next person on leave does not get paid.  Additionally, what happens when a person is on FMLA who does not work? Do you pay this person full pay when not working? Be careful.

Best advice though is to contact an employment attorney that specializes in FMLA.

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Bob McKenzie
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Posted: 26 August 2008 02:25 PM   [ Ignore ]   [ # 2 ]
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The FMLA sets a “floor” (e.g., it only requires unpaid leave) and specifically authorizes employers to provide more or greater benefits.

So, for example, an employer can provide “paid” FMLA leave of some type, similar to sick leave or vacation or personal leave (e.g., “We provide up to two weeks of paid leave annually during any FMLA time off. So, when you’re out on FMLA, your salary or wages will continue for up to two weeks; the remaining FMLA time will be unpaid, unless you have vacation or sick leave to use.”)

During “paid” FMLA leave, employers may not be able to force employees to use vacation or sick leave or other paid-time-off [see Repa v. Roadway (7th Cir. 2007) no. 06-2360 and Brotherhood v. CSX Transportation (7th Cir. 2007) no. 06-2744]. However, the other rules (12 weeks of leave, etc.) apply, even if employers pay employees during their FMLA time off.

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Posted: 03 September 2008 04:58 PM   [ Ignore ]   [ # 3 ]
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Agree that it is best to pay the employee only pursuant to some kind of established policy, or to charge the time off as sick/personal/vacation pay and draw down his PTO bank.  No matter how sympathetic the case may be, it sets a dangerous precedent to pay out full-time pay for part-time work when the employees is unable to work due to an FMLA-qualifying leave unless it is done pursuant to a well thought out company policy.

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Posted: 03 September 2008 05:16 PM   [ Ignore ]   [ # 4 ]
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Thanks so much for your input! I’m expecting to pull the paid time off by the following week and implement the FMLA consist with our policies which specifically address FMLA as being unpaid. Appreciate everyone’s input!

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