One tricky FMLA situation comes up when an employee asks for time off for an illness, but doesn’t mention FMLA leave. Another is when an employee takes leave, but never completes the necessary FMLA forms or properly notifies his employee.
What’s your responsibility? Some say you should offer FMLA forms right away, both to cover yourself and protect the employee. That’s a good idea – but you should know that the law puts a duty on employees to give clear notice.
Getting employees to meet their end of the bargain when taking FMLA leave
Consider list of to-dos before they walk out the door, including complete FMLA forms and other necessary procedures
You know that many FMLA lawsuits occur when employees fail to follow requirements. Even if companies win, it’s usually not until after a distracting and expensive hassle.
That’s why you may want to consider the following action step to head off FMLA misunderstandings (and lawsuits).
Offer employees who request leave a brief tutorial and a written checklist for FMLA compliance.
Using that checklist, employees can track and ensure their own compliance before they begin their leave. Include the necessary FMLA forms, certification requests and medical information needed for a smooth ride.
That step may have prevented this lawsuit: An assistant manager needed carpal tunnel syndrome surgery. When she requested FMLA leave, she was told to provide a medical certification from her physician before the leave would be approved. She was given three weeks to provide the FMLA forms.
The employer received no certification, extended the deadline and wrote the manager two letters asking for certification.
But the FMLA forms never arrived. The manager assumed her doctor would get around to it, but he didn’t. And she never took personal responsibility for the task. The manager took her leave.
After 30 days, when the employer’s medical leave policy was exhausted, she was terminated.
Next, she filed an FMLA lawsuit against the employer. But a court handed a victory to the employer who, it ruled, had complied with the law.
Cite: Urban v. Dollar General, No. 03-11276, 5th Cir., 12/8/04.
FMLA forms don’t authorize random absences
A case in Wisconsin makes the point. An employee with a spotty attendance record told her supervisor one day that she was sick and had to leave early. The supervisor didn’t ask any questions. She took three days off – after submitting FMLA forms to HR that showed she was seen at a clinic and needed the time away.
Later, she racked up a few more unauthorized absences. The company fired her over attendance.
She sued, saying that, under the FMLA, her three-day absence shouldn’t count against her record.
Wrong, the court said. An employee must notify an employer of a serious health condition to qualify for leave. This means documenting the need for an absence of three days or more, and continuing treatment by a healthcare provider.
In this case, the employee did receive a prescription, which amounted to continuing treatment. But she didn’t tell the company about it until much later. That wasn’t good enough. The company wasn’t obliged to inquire about her condition when her notice was deficient.
Cite: Phillips v. Quebecor World RAI, No. 05-3744, 7th Cir., 6/12/06.
Fired for violating the attendance policy, not for requesting FMLA
You may not fire an employee for requesting FMLA leave. But you may fire one for violating your firm’s attendance policy – whether or not FMLA was requested.
After a woman missed two consecutive days of work without calling in, her boyfriend dropped off her FMLA forms. But the FMLA forms weren’t processed until the woman had missed three days of work – a violation of the company’s attendance policy. The employee filed a lawsuit alleging the employer interfered with her FMLA rights. But a court ruled against her. The employer fired her for missing three consecutive days of work, said the court, not for requesting FMLA leave—even if she had completed the FMLA forms, she had not made sure they were processed on time.
Cite: Bones v. Honeywell International. Study: consumerism gap
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