The Sixth Circuit issued an ugly decision today in an FMLA interference claim. It's ugly because it didn't need to happen.
The dispute concerned when the employee was required to return from FMLA leave. The employee thought he had longer than did the employer, who fired the employee when the employee didn't return by the employer's deadline. The employee maintained he would have been able to return to work by the deadline as he understood it.
The problem arose in how the employer calculated the employee's eligibility for 12 weeks of leave. The court explained:
The FMLA stipulates that, “an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period . . . because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(D). Employers, for their part, are “permitted to choose any one of . . . [four] methods for determining the ‘12-month period’ in which the 12 weeks of leave entitlement . . . occurs.” 29 C.F.R. § 825.200(b). Two of these four methods, namely, the “rolling” method and the “calendar” method, are pertinent to this case. The “rolling” method calculates an employee’s leave year “backward from the date an employee uses any FMLA leave.” Id.Under the rolling method, the employee's 12 weeks of leave would have expired on June 13, while under the “calendar” method, the allowed leave would have extended theoretically through July 14. The problem, the court said, was that (the emphasis belongs to the court):
At no time throughout the FMLA process did the Company mention to Thom that his leave time would be governed by a “rolling” 12-month period. The only written document he received from the company stated that his leave would expire on June 27. He was only notified that American Standard had accelerated his return-to-work date on June 14, after it had already elapsed the day before. The first time Thom was given actual notice that the Company was using a “rolling” method requiring him to return to work on an earlier date was after he filed his lawsuit in this case when the defense lawyers raised the rolling method as a defense.The employer tried to argue that it had given notice to the employee but the court didn't buy it:
employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, [the employer']s notice to [the employee] fell decidedly short. Although [the employer] did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give [the employee] actual notice of this changed policy.Even worse, the employer had approved the employee's FMLA leave for though June 27, which was well after it later maintained, in the litigation, the employee's leave expired.
The lesson is pretty simple. Make sure to designate the manner in which you will calculate FMLA leave eligibility. The rolling calendar method is the one most employer's favor. But more importantly, make sure to calculate FMLA leave eligibility for each employee before approving a return to work date. But even if you mistakenly approve a return to work date after an employee's eligibility expires, you can fix the mistake by notifying the employee of the new return to work date. Depending on the circumstances, specifically, the employee's reliance on the longer leave period, you may have to be flexible in when the employee returns.
