Wait is this a trick question or has the writer (yours truly) lost her marbles? (Are those options mutually exclusive?) An employee ineligible for FMLA leave, by definition can’t get FMLA leave, right? I mean the employee has to meet specific criteria, the reason for the leave must meet certain criteria. Heck, if the employer has less than 50 employees in a 75-mile radius, it’s not even subject to FMLA! So, what gives? OK, OK, I’m not just filling up space here with a dumb question. There really are times and ways that an otherwise ineligible employee can end up getting FMLA leave. There really are times and ways that an employer can be on the hook for not giving it. With a bit of information and that annoying attribute and seeming oxymoron known as common sense you can avoid this type of scenario for your company. Read on to learn more…
(image from businessnewsdaily.com)
Let’s start with this example. An administrative assistant in your company tells his/her boss s/he needs hip and knee surgery. S/he asks for time off. Here’s the problem: she won’t be eligible for FMLA leave for another 2 or 3 weeks. She schedules her surgery after her eligibility date. You become concerned that s/he’ll sustain an injury and file a workers’ comp claim and insist s/he be sent home. You tell the employee through your H.R. representative tells to schedule the surgery as soon as possible and that the company will “work with” him/her so that s/he can get FMLA leave and still have job protection. Sounds good, right? The employee schedules the surgery, which is now set to occur in about a week and submits a request for FMLA leave. A few days after the surgery your company sends a letter advising the employee that s/he is not eligible for FMLA, and his/her job is not protected. About 2 weeks later, your inform the employee that s/he has been replaced. Your company is now facing a lawsuit.
This scenario is not so far-fetched. It actually happened. The case is Reif v. Assisted Living by Hillcrest LLC. dba Brillion West Haven, No. 18-C-884 (E.D. Wisc., Nov. 6, 2018). Predictably, the employer moved to dismiss the case, arguing that since the employee wasn’t eligible for FMLA leave, there was no case. The court wasn’t having it, though. The court ruled that it “would be fundamentally unfair to allow an employer to force an employee to begin a non-emergency medical leave less than two weeks before she would become eligible under the FMLA, assure her that she would receive leave and her job would be waiting for her when she returned, and then fire her for taking an unauthorized leave.”
When else might you incur the same risk? It all can come down to the forms you use. When your employee requests FMLA leave you (hopefully) provide them a certification to be completed by their (or their family member’s) health care provider. The DOL provides those forms. (You can find them here.) Have you ever had an employee request leave and used that same form when the leave is not an FMLA leave? The information you are looking for is probably the same. You want to know what the limitations are that prevent the employee from working during the leave time, you want to know for how long, etc. Why reinvent the wheel? Why not use the same form? Here’s why: The form specifically references the FMLA and can mislead the employee to think s/he is getting FMLA and rely on that–especially if you make no effort to let the employee know that s/he is receiving non-FMLA leave.
Similarly, what happens if your H.R. representative mistakenly designates an employee’s leave as FMLA leave when the employee isn’t actually FMLA eligible. If it’s caught before the employee actually goes on leave and you let the employee know in writing that there was a mistake and explain clearly what if any type of leave s/he will receive and whether s/he has job protection and all other relevant points, then you are probably O.K. If the employee has already gone out on leave though, you probably need to treat it as an FMLA leave.Why? Courts often don’t like it when you lead an employee to believe they’re getting something that you in fact didn’t intend to give them. It’s up to you, the employer, to be clear about what type of leave the employee is getting and what that actually means.
So what are the takeaways?
- Make sure you are clear on whether your employee is eligible for FMLA. If s/he is eligible provide him/her a Leave Designation Notice and do all the tracking, monitoring and documenting that you have hopefully learned to do.
- If the employee is not eligible for FMLA leave, communicate that clearly and in writing before s/he goes out on leave.
- If you promise the employee FMLA leave and the employee, in reliance on that promise goes out on leave, treat the leave as FMLA leave, even if you later realize that in fact the employee was not eligible. As you can see playing take-backsies could spell a lawsuit along with the legal fees and settlement or judgment.
Well, I think that about covers it for now. See you next week!
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