Warning: If you terminate employees who take more than 12 weeks off in a given period, you may be violating the even if you allow employees their full FMLA allotment of 12 weeks unpaid leave.
Such a policy may seem more generous than the FMLA, but may actually amount to retaliation for taking protected .
Consider this example: Say company policy allows employees a total of 26 weeks leave of any kind (including sick, vacation, jury duty and FMLA leave) during any 18-month period. Unless you rewrite the policy to exclude all FMLA leave from the calculation, the policy is illegal.
Recent case: Conchita Smith was terminated by her employer after she missed nearly 11 months of work in a 16-month span. Her employer, Medpointe Healthcare, had a company policy that warned employees they faced termination if they missed more than 26 weeks of work during any 18-month period.
Smith’s absences began with a complicated pregnancy and childbirth. After 12 weeks, she took additional vacation time before returning to work. She then had an auto accident and missed work from April 25 until October 13, when she finally was terminated for excessive absences.
She sued, alleging the company violated the FMLA by counting her towards her total absences.
The court dismissed her case, but only after warning the company that its policy did violate the FMLA because it allowed the company to count FMLA time in the total time off. This, wrote the court, is a clear violation of the premise that FMLA leave time cannot be counted against employees.
However, after the court excluded the 12 weeks of FMLA leave from the total absences, Smith still missed more time than the policy allowed. It therefore dismissed the case, with a stern warning to the company to exclude FMLA time from future policy applications. (Smith v. Medpointe Healthcare, No. 04-CV- 6315, DC NJ, 2007)
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