Good Morning,

I work for a small company in Indiana. We currently do not have a "written" Maternity Leave policy. We are however, covered by the FMLA.

My question is this:

As long as we follow the FMLA guidelines, are we free to extend PTO over and above on a case by case basis because we have no company policy? So far we have only had one person out on maternity leave, but we are growing and would like to make sure we don't get into trouble :)

Thanks,
TK

There is no law prohibiting you from doing so.

However, I am always wary of handling such things on a case-by-case basis because of the possibility of the perception (even if the intent is not there) of prohibited discrimination.

You can always extend leave beyond fmla as a matter of company policy.

Be careful of the "case by case" extensions. You may inadvertantly treat 2 people with the same issues differently. That can open the door to title vii violations.

Make a uniform pto policy.

There is no law prohibiting you from doing so.

However, I am always wary of handling such things on a case-by-case basis because of the possibility of the perception (even if the intent is not there) of prohibited discrimination.

Yes, that is my concern as well. However, the main reason we would like to have this freedom is because the job positions are SO different. What would work in one department, ie: working from home for a time beyond the allowed leave with pay, would not necessarily work for another. So in that case we would like the freedom to extend total time off with pay. Our company tends to be VERY generous, so it would not be that one employee would get NOTHING.

We just would like to leave it without a written policy that we then HAVE to adhere to and apply the same to everyone. Although I do realize "usual" practice could eventually come into play.

Thanks for your advice!
TK

Still be careful.

Here's why.

If the people in the department that can possibly work from home are flsa classified as exempt, then they are not on leave using pto; they are working and must be paid as such.

An unwritten leave extension policy does not apply to exempt ee's working from home, because they must be paid as if they were in the office.

(This answer of course is based on the assumption of exempt status)

Still be careful.

Here's why.

If the people in the department that can possibly work from home are flsa classified as exempt, then they are not on leave using pto; they are working and must be paid as such.

An unwritten leave extension policy does not apply to exempt ee's working from home, because they must be paid as if they were in the office.

(This answer of course is based on the assumption of exempt status)

Yeah, I didn't word that very well. Sorry!

So, lets say an employee that has been here for 5 years has 20 days of vacation pay available to take while on Maternity Leave.

Another employee has only been here for 1 year, therefore only has 5 days available to take.

If we extend extra days to Employee B to help her out, would that be discrimination under title VII that employee A could file a claim with the EEOC?

Those are the kinds of things we would like to be able to do.

No, what you describe would not actually be discrimination under Title VII.

But let's suppose that the two employees were of different races, and the one that was denied an extension files a complaint with the EEOC charging race discrimination, using as her proof the fact that the other employee, of a different race, did receive one.

While the difference in tenure would support you, you'd be on much firmer ground if you had a written policy specifying under what conditions you would consider an extension. It doesn't have to be hard and fast; you can leave yourself some wiggle room. But perception is everything in employment law; in the above situation it is not impossible that a good lawyer could convince a court that there WAS racial discrimination, even if you actually made the decision based on job length.

You should really consider a written, uniformly implemented policy. Not only will it make it easier to prevail in claims of employment discrimination, employees should know with some certainty the benefits the company provides. It's helpful for management as well because the certainty can allowing for planning to ensure the operation continues to run smoothly during an expected absence.

You can write the policy to address whatever meaningful distinctions exist in jobs or departments that would necessitate differences in the policy.

Thank you very much everyone for your valuable information!

TK