Issue: Notifying employees that their leave qualifies under theAct ( ).
Risk: Courts tend to resolve borderline FMLA eligibility disputes in favor of employees.
Action: Make FMLA eligibility decisions right away, especially with employees approaching their 12-month anniversary.
You must tell employees whether their leave qualifies under FMLA so they can plan accordingly. But you shouldn't linger over the decision; make the call as soon as possible and tell the employee.
If a person is considered your "employee" on her 12-month anniversary, even if she's out on unexcused leave at the time, she'll be eligible to take. And that could present a problem if you're about to fire the employee, as in the following example.
Recent case: Kimberly Babcock worked for a company for 10 months before taking short-term disability leave for a health problem. A couple weeks later, her short-term leave expired, but she still remained out. As a result, following absences were deemed "unapproved."
While on unapproved leave, Babcock's one-year anniversary came and went. She asked for additional leave, but the company refused. Soon after, Babcock was fired. She sued, claiming that denial of her leave time constituted an FMLA violation. A jury awarded her $91,913 in lost wages and benefits. An appeals court agreed.
The company had argued that Babcock wasn't eligible for FMLA because her initial leave began before her 12-month anniversary. But the court said that didn't matter. It said Babcock was employed on her one-year anniversary, so when she requested the additional leave, she was entitled to FMLA leave. (Babcock v. BellSouth Advertising and Publishing Corp., No. 02-1791, 4th Cir., 2003)
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- DOL issues new FMLA poster: Get your free copy here
- Know the FMLA rules: You must allow intermittent leave before women give birth
- Common sense: It's OK to urge employee to use paid leave instead of unpaid FMLA
- Ask on-Leave employees to tell you when they'll return