Another FMLA Question

[mbm62]

What is the name of your state (only U.S. law)? Texas

I have been with my current employer for less than the required 1280 hours to be eligible for FMLA. Due to a surgery that I desperately needed due to the amount of pain I was experiencing and the constant insistence of my manager that I needed to take care of it as I was underperforming, I decided to take short term disability and I had the surgery. I spoke with HR and never was told I was not eligible for FMLA nor did my manager explain my ineligibility. I have now...after my surgery...have been told that due to me to having FMLA coverage, my position is not guaranteed to be waiting for me when I released to go back to work. My question is two part:
1. Is my lack of knowledge of what my FMLA protection be used as a defense in the event that management decides to "relieve" me of my position due to my inability to come back to work in a time "reasonable" by management.
and...
2. If this should come to push and shove...after reviewing the amount of time I lacked to reach FMLA eligibility which amounted to 3.45 weeks which broken down to the 7 months I've been with my employer averages to approximately 20 hours per month...can I claim all the overtime I've worked during those last 7 months to make up the time I lacked to reach FMLA eligibility? I'm in accounting and I can tell you with all certainty, I've more than averaged 20 hours of overtime per month.

 

[ecmst12]

You need 12 months of service, not just the hours. So no matter how many hours you've worked, you don't qualify for FMLA.

If you don't qualify, you don't qualify and they are not required to have your job available when you return. You needed the surgery either way, it doesn't seem like you could have put it off another 5 months until you did qualify, so I don't see that you not being aware you didn't qualify would have made any difference.

 

[cbg]

FMLA eligibility is set by Federal law. For FMLA to qualify, ALL of the following have to be true - if even one criteria below is not true, FMLA does not apply.

1.) You have worked for the employer for a minimum of 12 months.
2.) In the 12 months immediately preceding your leave, you have worked a minimum of 1,250 hours (not 1,280). Overtime hours count, but they only count actual hours; you do not get one and a half hours towards FMLA because you are paid for one and a half hours.
3.) The employer has a minimum of 50 employees within 75 miles of your location
4.) You or a qualified dependent/beneficiary have a serious health condition as defined by the statute.

Since you have only worked there seven months, you do not qualify for FMLA regardless of the hours requirement. In the absence of FMLA, regardless of your "lack of understanding" your employers are within their rights to terminate your employment if you are unable to return to work within a reasonable time - and they are the ones who get to decide what is a reasonable time.

 

[commentator]

Being let go because you were out for an extended period without FMLA, or because FMLA has been used up is a very common situation. File for unemployment benefits, which if you are able and available for work again now there should be very little problem with your being approved.

Unfortunately, that is ALL you get, there is no board of fairness somewhere that you can appeal this situation to. Your employer is following the federal guidelines, and that is all they need to do. You do not qualify for FMLA, whether or not they tell you whether you qualify or why you do not qualify so you could argue with them is not an issue, so it is totally legal for them to terminate you because of your absence from work.

 

[Beth3]

1. Is my lack of knowledge of what my FMLA protection be used as a defense in the event that management decides to "relieve" me of my position due to my inability to come back to work in a time "reasonable" by management.

Employers are required to advise employees of their FMLA rights however they aren't required to tell each employee individually. I expect your employer has the mandatory poster up somewhere on a bulletin board and/or it's in their employee handbook. Since you're not yet eligible for FMLA, you don't, however, have any FMLA "rights."

If this should come to push and shove...after reviewing the amount of time I lacked to reach FMLA eligibility which amounted to 3.45 weeks which broken down to the 7 months I've been with my employer averages to approximately 20 hours per month...can I claim all the overtime I've worked during those last 7 months to make up the time I lacked to reach FMLA eligibility? I'm in accounting and I can tell you with all certainty, I've more than averaged 20 hours of overtime per month.

If you are a non-exempt (hourly paid) employee, then you MUST be paid for the OT during the pay period in which the OT occurred. It cannot be used as "comp time" unless you work for the government.

If you are an exempt employee, then you aren't eligible for OT pay and your employer is not required to provide you with comp time for any leave time you take.

The bottom line is that you do not qualify for FMLA leave and your employer has no obligation to return you to your prior position when you're released to return to work. It's a completely straight-forward situation. There aren't any legal hairs to split here.