By Jeff Nowak
August 17, 2017
Poorly implemented FMLA policies and procedures are in the spotlight this week. And just a few vague words and a slip up are costing two employers hundreds of thousands of dollars.
Their mistakes, however, are golden lessons for the rest of us.
Confusion Over How Much Maternity Leave is Provided
In Sad Employer Story No. 1, Bhavani sought leave to give birth to her child and to bond with the child. No sweat, said the employer, who had surely gone through this exercise before. The employer maintained both an FMLA policy and a standalone “maternity leave policy,” which read (in part) as follows:
Maternity leave will be treated in the same manner as any other disability leave. Please see the Human Resources Manager for a complete description of Maternity Leave.
At present, all full-time regular employees will receive their full wages for a period not to exceed eight weeks. You may also choose an additional four weeks of unpaid maternity leave.
Notably, these two policies were completely silent on whether FMLA leave and maternity leave ran concurrently or consecutively.
To make matters worse, the employer failed to provide Bhavani the critical FMLA Notice of Eligibility or Designation Notice, so she didn’t have a clue what was coming or going when it came to FMLA leave.
When Bhavani later was terminated when she did not return to work on time, she cried foul, claiming that the employer’s policies and lack of notice led her to believe she was entitled to additional leave. The court agreed that the employer’s FMLA and maternity leave policies, when read together, could lead an employee to believe that FMLA and maternity leave are taken consecutively. Therefore, the court determined that a jury must decide whether Bhavani’s employer violated the FMLA when it declined to give her additional leave. Rengan v. FX Direct (pdf)
Confusion Over How Much Notice an Employee Should Provide When Requesting FMLA Leave
In Sad Employer Story No. 2, Lisa injured her shoulder while falling through the hatch of a catamaran boat.
Ouch. That couldn’t have felt very good.
As a result, Lisa requested and was granted FMLA leave beginning in early July. On her leave of absence form, Lisa indicated that her return date would be July 31. Her physician later cleared her to return not on July 31, but on August 4.
In Lisa’s employee handbook, it stated:
If the employee does not return to work following the conclusion of FMLA leave, the employee will be considered to have voluntarily resigned.
But then it also mentioned this:
If the employee’s anticipated return to work date changes and it becomes necessary for the employee to take more or less leave than originally anticipated, the employee must provide the County with reasonable advance notice (i.e., within 4 business days) of the employee’s changed circumstances and new return to work date. (My emphasis, not the court’s.)
A bit confusing. In Lisa’s situation, the employer considered July 31 to be her last day of FMLA leave (since that’s the date she originally indicated). Therefore, when Lisa was a no-show on August 1, it considered her to have voluntarily resigned her employment. After all, that’s what the policy says, right?
Not so fast. The policy also states that Lisa has four business days to inform the employer of the need for FMLA leave. That’s practically a lifetime. So, when the employer terminated her employment without giving her up to four business days to comply, the court found that the employer potentially violated the FMLA. Perry v. Isle of Wight County (pdf) My friend, Eric Meyer, has a good synopsis of the case here.
Insights for Employers
A few nuggets we need to keep in mind when drafting FMLA policies and call-in procedures:
- Let there be no ambiguity as to whether maternity, parental, caregiver, disability or any other kind of paid leave runs concurrently with FMLA leave. The FMLA regulations allow employers to run paid leave concurrently with FMLA, so do it. And make it crystal clear in your policy.
- When employers do not provide the appropriate individual notices (i.e., the Notice of Eligibility and Rights & Responsibilities and the Designation Notice), it is tantamount to strict liability: the employer is on the hook for the loss that results. As the court pointed out here, when an employee puts the employer on notice of the possible need for FMLA leave, it must provide the individual notices to the employee.
- Draft and maintain very clear call-in procedures, and ensure they are demanding. All too often, I review FMLA policies that require the employee to provide notice of the need for FMLA leave (or need for additional FMLA leave) “as soon as practicable” or “within a reasonable period of time.” What kind of useless parameters are these? Remove this vague mumbo jumbo from your policies and replace it with far more strict parameters, such as “at least one hour before your shift begins.” If you are inclined to be a bit more generous, consider cutting it back from the four business days allowed by Lisa’s employer. These lengthy reporting grace periods frustrate your ability to properly staff your operations, lead to misuse of FMLA and, as here, they create easy opportunities for you to violate them, resulting in expensive attorney’s fees and potential liability.