Under FMLA regulations, employer is responsible for recognizing FMLA need
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Under FMLA regulations, employer is responsible for recognizing FMLA need

Don’t get caught in this FMLA trap: not all workers will request FMLA by name

Improper notification, or employer’s violation of FMLA regulations?

“Pete, we’re letting you go,” said supervisor Allen Brigand. “You’re entitled to leave, but your inability to notify us as to how long you’re going to continue needing leave is causing a real burden for the company.”

Pete shot back: “I submitted time sheets showing every day I took off. You’re firing me because you can’t bill our clients for the hours I don’t work.”

“No, that’s not it,” said Allen. “You’ve taken off 77 days in nine months. Several times you told us after the fact that you’d be out.”

“My wife has cancer, Allen. I couldn’t predict when I’d have to rush her to the hospital.”

“I sympathize,” said Allen, “but your absences are hurting us.”

“Aren’t these absences covered under the FMLA?”

“You never mentioned FMLA leave,” said Allen.

“Well I am now. And I’m suing the company.”

Did Pete win?

The decision

Yes, Pete won his case.

First of all, the courts pointed out that Pete didn’t have to mention that his leave was in fact FMLA leave under FMLA regulations. It’s up to companies, not employees, to recognize what circumstances qualify for FMLA leave. A spouse with cancer clearly qualifies and as Pete’s supervisor Allen should have known that.

Explain FMLA regulations, rights, and obligations

In fact, as soon as he found out that Pete’s wife had cancer, Allen should have sat down with Pete and:

  1. Explained his rights under FMLA
  2. Explained his obligations for providing notification, particularly concerning “unforeseen” leave. The FMLA protects workers who require leave to deal with emergencies. That said, companies have the right to demand reasonable notification of such leave.

He’d met FMLA regulations

In this case, the court ruled that Pete had met his obligations. All foreseeable leave had been cleared in advance. And “after-the-fact” notifications for Pete’s wife’s emergencies were all reported as soon as Pete could reasonably be expected to do so.

Bottom line: Take all 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.

Employer should have recognized need for FMLA leave

Fired for sleeping on the job, worker is entitled to reinstatement

When a model employee suddenly changes his behavior, sleeps on the job and then fails to show up for work, don’t fire him until you’re certain he isn’t suffering from an FMLA-qualifying condition – even if he doesn’t request medical leave.

In a recent case, an appeals court ruled that the employer should have known that something was wrong and that the employee needed medical leave.

John Byrne was employed as a night-shift engineer at Avon Products. After more than four years of exemplary service, Byrne was caught sleeping on the job. Video surveillance revealed it was more than an occasional nap. In fact, he’d been doing this every shift for two weeks.

When confronted by his boss, Byrne said he felt sick; then he left work. The boss called him at home. His sister said that Byrne was “very sick.”

A few days later, in a telephone conversation, Byrne mumbled some “odd phrases” but agreed to attend a disciplinary meeting the next day.

When he failed to show up, his employment was terminated – for missing the meeting and for sleeping on the job.

Byrne sued for violation of FMLA regulations. And he won his job back. Turns out he was suffering from a major depression. And the judge said that Byrne’s change in behavior and his sister’s “very sick” comment were, in fact, notice enough that Byrne required medical leave under FMLA regulations.

Cite: Byrne v. Avon Products, Inc., U.S. Court of Appeals, 7th Circuit, No. 02-2629, 5/9/03.

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