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Check eligibility before OK’ing FMLA leave

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in FMLA Guidelines,Human Resources

Here’s a practical tip that can save you from needless litigation: Always double-check that an employee who has requested FMLA leave is actually eligible. It’s crucial if you operate out of several states or have multiple offices, since some locations may not be large enough to require FMLA coverage.

Why is it important to check be­­fore approving the time off? Because if it turns out you were wrong and the employee wasn’t really eligible, she may sue you if you wind up disciplining her for taking leave she wasn’t entitled to. She’ll argue that she relied to her detriment on your leave approval; otherwise, she wouldn’t have taken leave.

Recent case: Diane requested and was approved to take FMLA leave. She took the time off, but was fired once the company figured out that she really wasn’t eligible because it didn’t have 50 or more ­­employees within 75 miles of the location where Diane worked.

Diane sued, arguing that she wouldn’t have taken the time off if she hadn’t first been approved. Instead, she would have made other arrangements. This, she claimed, was detrimental reliance—she was harmed because she counted on the accuracy of the company’s assertions.

The court said her case could go forward. It reasoned that if Diane can prove she would have been at work instead of out on what she thought was approved FMLA leave, she will have shown detrimental reliance. (Schweitzer v. Forward Air, No. 4:12-CV-01865, MD PA, 2013)

Final note: If you discover you erred by approving FMLA leave for someone who wasn’t eligible, check with your attorney before you terminate the employee. You might be better off just allowing the employee to take the time off.

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