Labor & Employment Law

FMLA Not Violated Based on Employee Misunderstanding of Leave Rights

By Harvey Randall, Esq.

FMLA Not Violated Based on Employee Misunderstanding of Leave Rights
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2008. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

An employee who remains out of work beyond 12 weeks based on a misunderstanding regarding the amount of FMLA leave available does not have a viable FMLA claim against his or her employer for disciplinary action regarding the excess unexcused absences.

In Edwards v. Heathcraft, Inc. No. 7:05-cv-36 (HL), 2008 U.S. Dist. LEXIS 11596 (M.D. Ga. Feb. 15, 2008), the employee took maternity leave when she became medically unable to perform the lifting functions of her job while pregnant. The supporting medical certification indicated that Edwards would need leave from April 16 to November 16. The certification also indicated the probable duration of her condition to December 6, 2004.

Based on the medical certification, Edwards believed that she had until December 5 to return to work. Heathcraft properly designated 12 weeks of her leave as FMLA and so informed the employee. After the expiration of 12 weeks of FMLA leave but before December 6, Edwards ignored Heathcraft's repeated requests to return to work or face discipline for unexcused absences. Heathcraft terminated Edwards for fifteen unexcused absences.

According to the court, Edwards' right to job-protected FMLA leave expired 12 weeks after her leave began. Heathcraft, the court found, had done everything it was required to do under the FMLA. When Edwards failed to return to work thereafter, Heathcraft had no FMLA obligations to fulfill. The cited absences were not protected by the FMLA and, therefore, could legitimately be the basis for disciplinary action.

Comment: All too often employees exceed their 12 weeks of job-protected FMLA leave because they are not aware of exactly how much FMLA leave they have available. Currently, the employer notice provisions of the FMLA, 825.208(b)(1), only require an employer to notify the employee that leave has been designated and will be counted as FMLA leave. The current regulations do not specifically require employers to provide employees with information detailing the amount of leave so designated.

Recognizing the problem, the DOL has proposed revising the notice provisions by adding the requirement (825.300(c)(1)) that employers tell employees the number of hours, days or weeks of leave that have been designated. Where the exact amount of FMLA leave may be unknown, the proposed regulations require employers to notify employees every 30 days of the amount of leave that has been designated as FMLA-qualifying. The above information is designed to avoid situations like Edwards where an employee mistakenly exceeds their 12 weeks of FMLA leave due to a lack of information.

NOTE: Mr. Bosland will be conducting a federal sector FMLA workshop on April 25, 2008, in Crystal City, Virginia, at the annual meeting of the Society of Federal Labor and Employee Relations Professionals.

Full post as published by New York Public Personnel Law on March 27, 2008 (boomark / email).