Employees who want to take additionalunder the must comply when their employer asks for recertification.
Essentially, once an employee has used up his 12 weeks of leave in a year, he has to earn his way back to eligibility for.
For example, if he used all 12 weeks over the course of six months, he’d have to work another six months and 1,250 hours before becoming eligible again.
Recent case: John McGuiness has a son with severe psychological disabilities. He applied forin 2007 to care for the child and asked to leave two hours early every shift. His request was granted.
More than a year passed and McGuiness was terminated, in part because of excessive.
He sued, alleging that some of that time off was to care for his son and that firing him was retaliation. But he had never requested additional intermittent leave after using up his allotment in 2007.
The court tossed out the case, reasoning that the absences weren’t covered by the FMLA because McGuiness never requested the time. His belief thatdidn’t require recertification was irrelevant. (McGuiness v. East West Industries, No. 11-628, ED NY, 2012)
Advice: Keep employees apprised of their FMLA entitlement. Send an expiration notice and explain the reapplication process. That way, there’s no question that the ball is in the employee’s court. He or she must proactively request additional leave.
- Notify 'key employee' right away if denying reinstatement to job
- Working during FMLA leave: Should we stop it?
- Pregnant employee? Make every effort to accommodate temporary restrictions
- Employees can't claim retaliation if they're not FMLA-eligible
- FMLA compliance doesn't rule out enforcing attendance policy