For over 20 years, employers with 50 or more employees have provided employees family medical leave pursuant to federal law. However, despite the law”™s lengthy existence, employers still struggle. Resultant missteps expose employers to significant monetary liability.
For instance, in Summerlin v. Almost Family Inc., a case out of the U.S. District Court for Connecticut, a jury awarded the plaintiff $400,000 for a Family and Medical Leave Act (FMLA) violation, although the court reduced the award to almost $200,000 after her interim earnings were taken into account. These types of high dollar awards are not unusual in FMLA cases.
As a reminder, the law entitles eligible employees of covered employers to take unpaid, job-protected leave to assist specified family members and the employee for certain medical reasons while continuing group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
The basics
Eligible employees are entitled to 12 work weeks of leave in a 12-month period for the birth of a child and to care for the newborn child within one year of birth; the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; to care for the employee”™s spouse, child, or parent who has a “serious” health condition; a serious health condition that makes the employee unable to perform the essential functions of his or her job; and any qualifying exigency arising out of the fact that the employee”™s spouse, son, daughter or parent is a covered military member on covered active duty, or 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember”™s spouse, son, daughter, parent or next of kin (military caregiver leave).
Timing matters
Once the employer receives notice the employee may need FMLA leave, the employer has five business days to provide an eligibility notice to the employee. This is form WH-381 and can be found on the U.S. Department of Labor”™s website. Failure to timely notify employees of their eligibility status may violate the law, even though the employee never requested a leave. At the same time the employer provides the eligibility notice, it is required to provide a rights and responsibilities notice to the employee. This can also be found on form WH-381.
Failure to provide the proper notice can expose the company to liability. For instance, in Vannoy v. The Federal Reserve Bank of Richmond, a case out of the Fourth Circuit Court of Appeals, the plaintiff applied for and was granted 30 days of family medical leave. The plaintiff, however, only took a few days of leave. His employer did send him a rights and responsibilities notice but it did not state the plaintiff had job protection rights. Upon his return to work, the plaintiff went on a business trip to Baltimore but did not show up for any of his meetings. Upon his return, his employment
was terminated.
The plaintiff then brought a host of claims, including one for FMLA interference, based on the employer”™s failure to explain his job protection rights. While the lower court granted summary judgment to the employer, the Fourth Circuit reversed. The Fourth Circuit found there was no dispute the designation notice was inadequate because it did not explain the plaintiff had job protection. Fortunately, the court also noted the plaintiff was required to show he suffered prejudice as a result of the defective notice. The Court found the plaintiff met this burden because he repeatedly testified he would have structured his family medical leave differently had he not feared he would lose his job. This case is a good reminder that for the FMLA, attention to detail is key.
Once the employer has enough information to determine if the leave is FMLA qualifying, it has five business days to provide an FMLA designation notice to the employee. This is form WH-382. If the leave is not FMLA qualifying, the notice may be a simple statement that the leave does not qualify and will not be designated as FMLA leave.
Common FMLA mistakes
While an employee is out on family medical leave, there are a few key tips to remember. First, if an employee takes intermittent family medical leave, the employer cannot count this as an absence. Therefore, if an employee has attendance issues separate and apart from FMLA leave, the employer must be careful to ensure any FMLA-protected absences are not counted against the employee for disciplinary purposes.
Additionally, employers oftentimes fail to accurately track FMLA leave if it is intermittent. The employer should have human resources manage this function because the possibility of error is great. Also, without accurate records, there is no limit to the actual amount of leave the employee can legally take.
When an employee returns from family medical leave, she or he is entitled to the same job or one of equivalent pay, responsibility and benefits. Oftentimes when an employee is out on FMLA, the employer has a replacement fill the employee”™s job. In some cases, the employer determines the replacement does a better job than the employee who went out on leave. In some cases, the employer may realize the employee was actually incompetent. Unfortunately, taking action on this realization is difficult as it may lead to a retaliation claim.
For instance, if an employer determines the absent employee is a subpar performer while that employee is out on leave, taking immediate action is extremely risky. The returning employee will likely claim retaliation and very likely win. However, if the employer returns the employee to work and then, in the normal course of business, addresses the subpar performance, there remains a risk of a retaliation claim but its likelihood and chance of success are reduced.
Takeaways for employers
A big first step for employers is ensuring you have posted notice of Family Medical Leave Act rights. The Department of Labor provides a free poster that accomplishes this requirement and many companies sell posters that provide this same notice. The employer should also include an FMLA policy in its handbook that clearly communicates the employee”™s FMLA rights and who to contact if FMLA
leave is needed.
Communication, however, is only half the battle. Determining who will be responsible for administering the leave is also key. While employees often approach their supervisor about this type of issue, it is best if human resources or one designated person is responsible for the administration function of the leave. This law is too complicated to let just anyone handle it.
Training managers on the FMLA”™s benefits, an employee”™s rights and avoiding FMLA retaliation is also crucial. Oftentimes, managers and co-workers will be frustrated by the burden an employee”™s absence places on the team and they take it out on the family medical leave user. This is blatant retaliation and must be avoided. Therefore, training managers to treat employees returning from paid family medical leave consistently with everyone else is key. Supervisors also need to ensure co-workers also treat the FMLA user fairly.
Finally, this federal law can be complicated by local, state and other federal laws. For instance, employers with 75 or more employees in the state of Connecticut have additional obligations under Connecticut”™s Family Medical Leave Act. New York state recently enacted paid family leave that has similarities to FMLA but several major differences.
For instance, New York paid family leave cannot be taken for one”™s own serious health condition, whereas FMLA can be taken for this purpose. Therefore, to the extent multiple leaves are implicated, employers would be wise to contact labor and employment counsel to analyze the availability of various leaves.
Robert G. Brody is the founder of Brody and Associates LLC., a law firm with offices in Westport and New York City that represents management in employment and labor law. He can be reached at rbrody@brodyandassociates.com or by phone at 203-454-0560.
Attorney Katherine M. Bogard is an associate with Brody and Associates in Westport. She can be reached at kbogard@brodyandassociates.com or by phone at 203-454-0560.
