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A Better Partnership


Mar 2012
March 16, 2012

Just When You Thought It Was Safe to Grant FMLA Leave

There has been lots of recent activity in the Family and Medical Leave Act (FMLA). First the Department of Labor has announced proposed changes to the FMLA regulations:
  • Military Family Leave - Caregiver leave will be available for up to five years after the service member leaves the service and will cover injuries that predate service but where exacerbated by service;
  • Flight Crew FMLA Eligibility - A change in how hours worked will be counted will mean more members of flight crews are eligible for leave;
  • Employee Leave Calculations - How employers calculate increments of leave will revert to the old way of counting leave time (i.e., if you keep time in tenths of hours, you grant leave in tenths of an hour).

The proposed changes were published in the Federal Register on February 15 and the public has 60 days, or until April 16, to comment on the proposed changes.

At the end of January 2012, the Sixth Circuit issued an opinion that serves as another reminder for employers: Comply with the Family and Medical Leave Act or suffer the (potential monetary) consequences.

The case in question involves a misunderstanding between an employee and an employer regarding when the employee’s medical leave ended. Carl Thom, Jr. had worked as a molder for American Standard, Inc., in Tiffin, Ohio, from July 16, 1969, until he was discharged on June 17, 2005, a period of nearly 36 years. Due to a nonwork-related shoulder injury, Thom requested leave under the FMLA for surgery and rehabilitation. Thom requested leave from April 27, 2005 until June 27, 2005. American Standard officially granted Thom’s request in writing, which was the only company document setting out a return-to-work date.

Thom had shoulder surgery on April 27 and his shoulder initially healed more quickly than anticipated. After a follow-up appointment, Thom’s doctor wrote a note stating that Thom could return to work on June 13.

Thom failed to come to work on June 13, however, because he was experiencing increased pain in his shoulder. On June 14, he told human resources that he would return to work on June 27, the last day of his approved leave.  Thom tried to obtain a doctor’s note extending his leave from June 13 to June 27, but Thom did not obtain a doctor’s appointment until June 17, four days after his scheduled return. After this appointment, Thom went straight to work and he was terminated that very day. American Standard had counted every day Thom missed from June 13 to June 17 as an unexcused absence. As a result, Thom had exceeded the absences allowed by the company and was terminated on June 17.

How could American Standard claim Thom’s medical leave ended June 13 even though Thom was originally approved for medical leave through June 27? The answer to that question, and the central issue in the case, is how an employer calculates leave under the FMLA.

Under the FMLA, employees are entitled to a total of 12 workweeks of leave during any 12-month period. Employers are permitted to choose one of four methods for determining the 12-month period in which the 12 weeks of an employee’s leave entitlement occurs. This case concerns the “rolling” and the “calendar” methods. The “rolling” method calculates an employee’s leave year backward from the first date an employee uses any FMLA leave. Under this method, Thom’s leave would have expired on June 13. Under the “calendar” method, which calculates 12 weeks of leave in each calendar year, Thom’s allowed leave would have extended through July 14.

Predictably, American Standard argued the rolling method applied, while Thom argued the calendar method applied because American Standard failed to adequately notify him of its method for calculating FMLA leave. American Standard did not inform Thom in writing or otherwise that company policy was to use a rolling method of calculation. Without notification from an employer, an employee is allowed to use the method of calculation that results in the most beneficial outcome. American Standard, on the other hand, claimed that it had always used the rolling method for calculating FMLA leave and had therefore met its burden (i.e., notification). The district court ruled in favor of Thom. The Sixth Circuit affirmed this ruling.

The Sixth Circuit concluded that an employer is required to take affirmative steps to inform employees of its selected method for calculating leave under the FMLA. The Sixth Circuit stated that American Standard “fell decidedly short” of informing Thom in an appropriate manner of what method is used to calculate FMLA leave. The court reasoned that employers should inform employees in writing.

Even though American Standard did amend its FMLA leave policy in March 2005 to the rolling method, American Standard did not give Thom actual notice of this changed policy or in any way inform him that his official leave date would expire earlier than June 27, the date the company originally approved in writing. Accordingly, the court held that Thom was allowed to rely on the calendar method, which was the most beneficial method of calculation in this case.

As a result of the court’s finding that American Standard had violated the FMLA, American Standard had to pay Thom $99,960 in attorney fees, $2,732 in costs and $104,354 in back pay. The Sixth Circuit also found that American Standard did not act in “good faith” when it violated the FMLA, so it ordered that the damages be doubled under the statute’s liquidated damages clause.

The Sixth Circuit’s ruling is a reminder to employers that the FMLA puts the burden on employers to inform employees of company policies and that discrepancies are often resolved in favor of the employee.

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