Never encountered this.

At my job they never really had anybody do actual HR stuff before and didn't keep the best records.

We have an employee that had a baby and she has been off 12 weeks and is not going to be able to return soon (cannot find child care). Nobody ever had her fill out FMLA paperwork or anything like that from the begining. Can we term her for running out of FMLA time w/o the paperwork? If we did we would keep her on rehire status for when she is ready to return but we would like to fill her position in the meantime.

Always worked for big companies where everything is documented, not used to these situations.

It's by no means the ideal way of handling the situation.

But ever since Ragsdale v. Wolverine in, I think, 2002 (US Supreme Court case), it is generally understood that if an employee has received all the time due them under the law, they will not prevail in a complaint that they were not told that their time off was under FMLA. So if she's been off work for the entire 12 weeks due her under FMLA plus, you are *probably* okay to term her even without the paperwork.

BTW, not being able to find child care is not a protected reason to stay off work under FMLA or any other law.

Of course, if the company is that small, are you sure that FMLA even applies?

1.) Does the company have 50 employees or more within 75 miles of her location?
2.) Had she worked for the company a minimum of 12 months before going on maternity leave?
3.) Had she worked a minimum of 1,250 hours in the 12 monthe prior to her going on maternity leave?

She was completely eligible, I know all of the rules - never had to deal with a situation like this that had no documentation. I recently came from a 70,000 employee corporation to a 70 person company. It's difficult and challenging when you did your one thing and now you do it all. FMLA not my strongsuit but getting this place on track.

Just checking - you would be amazed at how many small business owners I talk to in my business who do not understand the rules. No offense intended.