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Feel free to set generous FMLA notice terms, but rely on the law if you wind up in court

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in FMLA Guidelines,HR Management,Human Resources

Some employers cut more slack than the FMLA requires when employees fail to give timely notice that they want to take FMLA leave. For example, in some industries, it’s common to notify absent employees who haven’t called in that they will be terminated if they don’t come back to work or otherwise explain their absence within a few days.

In cases like those, the company typically might send an employee a letter informing her that, since she didn’t show up for her last scheduled shift or offered an explanation, she has five days to return or explain why she can’t work.

If the reason is one covered by the FMLA, she may already have lost the right to claim FMLA leave—since she didn’t notify her employer within two days of learning she needed leave or as soon as was practicable under the circumstances. That’s what the law requires.

However, the employee can’t go to court and claim that her company’s more lenient absenteeism policy overrode the official FMLA notice requirements.

Recent case: Letecia Brown worked for Ford on the assembly line. When she became stressed, she got her doctor to approve stress leave until Aug. 28. The doctor also recommended she seek psychiatric counseling.

On Aug. 21, Brown learned that she wouldn’t be able to see a psychiatrist until Aug. 29. Instead of letting her employer know right away that she needed more time off and wouldn’t be able to work on Aug. 29, she simply didn’t show up.

Ford had a five-day quit notice policy.

Once the company sends a certified letter explaining the options, Ford gives absent employees five days to come back to work or explain why they can’t return. Brown ignored the notice and was fired.

Then she sued, alleging she had been absent because of a serious health condition covered by the FMLA.

Ford argued that if she wanted to take FMLA leave, she should have informed the company she needed more time off than her first certification allowed—and that she should have done so within two days of discovering she needed more leave.

Since Brown knew on Aug. 21 that she couldn’t return as scheduled, Ford argued she wasn’t eligible for FMLA leave because she hadn’t followed the FMLA notice requirements.

Brown argued Ford gave up its notice rights when it created the more generous absent-without-leave rule allowing five days to return.

The court didn’t buy the argument. Although Ford couldn’t fire her under its own rules until it did, that didn’t mean Ford couldn’t defend against her lawsuit by claiming she hadn’t followed FMLA rules and regulations. (Brown v. Ford, No. 09-1641, 7th Cir., 2010)

Advice: Your best bet is to make your FMLA expectations very clear. Tell employees to contact HR as soon as they realize they need FMLA leave. Give them the certification forms and remind them they must return them within 15 days. After you approve the leave, explain that it’s their responsibility to tell you as soon as they realize they need more time off.

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