FMLA: Forms, policies and the do's and don'ts of requesting leave and FMLA paperwork

The responsibilities of employer’s and employees: FMLA paperwork and request policies

In many FMLA cases, one of the biggest issues is how employees request family medical leave. The FMLA has guidelines outlining the proper FMLA paperwork and notice needed to take legal leave. Many companies have their own additional FMLA forms and request policies, as well.

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Here are two cases that provide insight into both an employee’s and an employer’s responsibilities under the law.

In the first instance, a pregnant employee told her supervisor that she was going to need some time off when her baby was born. She didn’t specifically mention FMLA leave. Nor did she ask to complete FMLA forms requesting the leave.

In case number two, an employee violated company policy by leaving a message about his medical absence with the company’s security desk, instead of with HR or documented in FMLA paperwork.

In the third case, supervisors neglected to supply the FMLA paperwork that a man desperately needed in order to legally reduce his workweek.

Fired for financial reasons?

Laurel Mullin, a Manpower employee, told her supervisor in confidence that she was five weeks pregnant, and that she expected to take “maternity leave” close to her due date.

Shortly after that, Mullin was fired. Her boss said it was for “financial reasons.” Another supervisor told her it was for financial reasons plus “performance reasons.”

Mullin filed a lawsuit against Manpower, which believed it had the right to fire her for reasons unrelated to her leave request. And it did have that right. Problem was, Manpower couldn’t prove that Mullin was fired for any reason other than her intention to take FMLA leave.

In court, Manpower made a convoluted argument: Because Mullin hadn’t specifically requested “FMLA leave,” or the necessary FMLA paperwork to apply for one, she hadn’t been granted FMLA leave. And since she hadn’t been granted such leave, she couldn’t very well be fired in retaliation for taking it.

In issuing its decision in favor of Mullin, the court described an employee’s responsibility if she wants maternity leave: She must tell her employer that she will need time off for the birth of her son or daughter, and make sure that any FMLA paperwork given to her is completed. She doesn’t have to mention FMLA specifically, as she may not know what it is. It’s the employer’s responsibility, not the employee’s, to recognize that such a request qualifies as FMLA leave and to supply the FMLA forms.

No FMLA forms, no requests, no dice

Another recent case highlights the employee’s responsibility when requesting medical leave and the necessary FMLA forms.

When Samuel Cavin got into a motorcycle accident, he called in to the security desk where he worked and told the operator he’d be out for the day. He did the same each day for one full week – no FMLA forms, no certification, no documented request.

The security desk noted Cavin’s absence, but – according to company policy – listed no reason for it.

The next week, when Cavin returned to work with a “fit for duty” note from his doctor, he learned he’d been dismissed for violating company policy. For absences longer than three days, employees were required to call in to HR – not to the security desk – and request a leave of absence.

Cavin sued his employer and lost his case. The court said that the employer’s policy was clearly spelled out in its handbook, and that no reasonable jury could find that Cavin had given his employer adequate notice, especially because there were no FMLA forms documenting his illness or request.

Slow FMLA paperwork for HIV worker costs $277K

A third case demonstrates the disastrous consequences of supervisors who do not adhere to their FMLA obligations.

Pharmacy giant CVS must pay a worker at an AIDS/HIV specialty pharmacy $277,000 because supervisors failed to provide the FMLA paperwork needed for family medical leave.

The HIV-positive worker, employed at a store in San Francisco’s Castro district, sought the FMLA paperwork needed to reduce his work schedule, because he was becoming increasingly fatigued and ill.

A jury found supervisors at fault for dragging their heels on providing the necessary FMLA forms to reduce his workweek from five days to four. He was forced to resign to protect his health.

Bottom line: Employer should explain, employees should fill out FMLA paperwork

These cases underscore both the employer’s and the employee’s duties under FMLA.

It’s okay to have a policy that specifies the means of requesting a leave (example: contact HR for the proper FMLA forms). But you can’t fire someone because she didn’t request leave by using the right words. If she doesn’t say “FMLA,” you must explain her FMLA rights to her. If she doesn’t ask to sign the appropriate FMLA paperwork, it’s your responsibility to give her the FMLA forms and ask her to do so.

And if she doesn’t return the signed FMLA paperwork, it’s your obligation to remind her.

Cites: Mullin v. Rochester Manpower, Inc., U.S. District Court, Western District of NY, No. 00-CV-6257 CJS(B), 1/10/02; Cavin v. Honda of America, Inc., U.S. District Court, Southern District of OH, Eastern Division, No. C2-00-400, 2/22/02; San Francisco Examiner.

Tagged as: FMLA (Family and Medical Leave Act), FMLA Abuse, FMLA Forms