"Time off" could be leave under FMLA regulations

by on January 14, 2010 · 0 Comment POSTED IN: HR Info Center

FMLA regulations say that an employer must recognize an employee’s need for FMLA leave, even if the employee doesn’t request “FMLA leave” by name. A request for “time off” for illness, family emergencies, or medical treatment may qualify under FMLA regulations, and it is up to the employer to make the connection.

FMLA regulations: Supervisor’s ‘time off’ qualified as FMLA leave

Employee met his FMLA obligations, but employer didn’t

An employer lost in court because management didn’t fully understand FMLA regulations.

An employee verbally requested time off to care for his wife who had cancer. He didn’t request “FMLA leave” per se. He just said he needed “time off.”

During a nine-month period he took off a total of 77 days. Most weren’t consecutive and the time off didn’t interfere with his supervisory duties. He continued to receive his full pay. And he submitted time sheets that indicated the days he took off to care for his wife.

But then he was fired. The reason, according to his employer: he hadn’t provided proper notification as to how long he’d continue to need time off.

The worker suspected the real reason was that his time off included hours for which his employer couldn’t bill its client.

So he sued, claiming the company was in violation of FMLA regulations. The company said he never even requested FMLA leave.

The judge ruled that the employee did not have to call it “FMLA” as long as he requested it properly. The employee had both foreseeable and unforeseeable leave needs. When leave needs are foreseeable, FMLA regulations require the worker to provide at least a verbal notification in advance. When unforeseeable, the FMLA regulations require the worker to notify the employer as soon as possible.

The judge said the employee met his obligations, but the employer acted inappropriately.

Bottom line: Take employee requests for “time off” seriously – and know FMLA regulations inside and out.

Cite: Moore v. United Int’l Investigative Services, Inc., U.S. District Court, Eastern Division of VA, No. 1:01cv1886, 7/10/02.

-FMLA regulations ask that workers at least hint that they need leave

As you probably know, FMLA regulations say that it’s up to the employer – not the employee – to recognize signs that the employee may qualify for FMLA leave.

But employers needn’t be mind readers, as this case shows.

An employee who’d been in a car wreck requested reduced work hours. Her employer accommodated her.

Unfortunately, this employee didn’t get along with her boss. After receiving numerous warnings about her attitude she was terminated.

In her lawsuit against the firm, she claimed her boss should have known she needed FMLA leave. After all, her performance changed after the accident.

The employer was prepared in court: It showed how the woman’s performance had always been pretty good – both before and after the accident. And it showed documentation of contentiousness between the employee and her boss – also before and after the accident.

Never complained about hours

The woman had never complained that her restricted hours were still too much. And her workload hadn’t changed. The employer saw no reason to offer her FMLA leave.

And the court agreed, concluding she hadn’t done anything to put her employer on notice.

Therefore, the employer hadn’t violated her FMLA rights or FMLA regulations.

Employees need not ask for “FMLA leave” by name. But they must at least drop a hint.

And employers need to be more than just receptive to requests for time off. They should be aware of sudden, unusual changes in an employee’s behavior or performance – and prepared to suggest FMLA leave if it seems appropriate.

For example, HR21 covered a recent case where a worker with a previously outstanding record suddenly began sleeping on the job every single day. A court said the employer should have realized the employee needed medical help and suggested FMLA leave instead of firing him.

Cite: Barngrover v. W.W. Transportation, 2004.

Dismissal interfered with FMLA regulations

A worker who missed several days of work once because of a respiratory infection and again because of serious dental problems was fired for violating the employer’s absentee policy.

But a court begged to differ: Although she hadn’t requested FMLA leave by name, she did provide her boss with enough information so that he should have inquired further and informed her of her FMLA rights. But he didn’t.

In ruling for the employee, the court said that the employer had interfered with the worker’s FMLA rights and FMLA regulations.

Cite: Phillips v Leroy-Somer North America.

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