Theis difficult to administer, especially now that it has been amended to include additional time off in connection with military service. Plus, new make more workers eligible for leave if they care for a child.
Rest assured that if you promptly fix an innocent mistake when it’s brought to your attention, you won’t be automatically liable for FMLA interference.
Recent case: Penny tookand returned before exhausting her 12-week entitlement. A few weeks later, she received a notice erroneously stating she had no more FMLA leave available. Shortly afterward, she was terminated.
She sued, alleging that because her employer wrongly stated she had no more leave, it violated the FMLA.
The court essentially said, “No harm, no foul.” Penny didn’t need FMLA leave after she returned. Therefore, it didn’t matter whether she had leave or her employer was mistaken. (Denton v. Fairfield Medical Center, No. 2:11-CV-0716, SD OH, 2012)
Final note: Of course, if Penny had requested leave after her return and been turned down when she really did have leave available, then her lawsuit would have had merit. Still, the employer would have had a chance to fix its error.
Advice: Before terminating an employee because you believe she doesn’t have FMLA leave available, do two things. First, double-check her FMLA eligibility. Then consider whether her condition might be an ADA disability—and whether extra time off might be a reasonable accommodation.
- Is your company too small for FMLA? Don't be too sure
- Warn managers: Don't make assumptions about pregnant employee's capabilities
- Warn employees: No FMLA certification, no excused absence
- Make sure supervisors understand: Do not discourage employees from using FMLA
- Tell employees when you plan to charge time off to FMLA