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Technically, no. The employee in this situation is not permitted to begin taking her 12 weeks of FMLA entitlement until she technically becomes eligible for FMLA (here, in 2 months). However, that does not mean you should not grant her a leave of absence even though she is not eligible for FMLA. In fact, state law may even compel you to grant a leave of absence, so you will need to be familiar with state laws on the subject. A word of caution: if you do grant the employee 2 months of leave before she is eligible for FMLA, it could extend her total leave of absence to five (5) months, which can be onerous. While employers can convey FMLA rights and entitlements (e.g., job reinstatement and continuation of group medical benefits) to employees who are perhaps not technically eligible for FMLA, they cannot pre-assign or “front” to an employee FMLA entitlement. As a result, any pre-entitlement time off that you give to an employee, even if it is for a serious health condition or related to pregnancy, for example, is more appropriately considered an unpaid leave of absence, and not FMLA. Once the employee becomes eligible for FMLA, even where she has already been on unpaid leave for two (2) months, she is still entitled to the entire 12 weeks of FMLA entitlement.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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