When an employee takes leave to deal with a serious health condition, be sure to inform her that you plan to charge the time against her allotment of unpaid.
If you fail to do so and the employee later runs out of leave and loses a benefit—such as reinstatement to the same or an equivalent position—it will be relatively easy for her to sue and show she was somehow harmed by the lack of notice.
The burden still will be hers to show that she would have come to work had she known theclock was ticking. But here’s the kicker: The 5th Circuit Court of Appeals, which covers Texas employers, says the employer must conduct an individual assessment of whether she could have returned to work. That means such a lawsuit will cost you the time and expense of preparing for a trial—whether or not the employee has a legitimate complaint.
Advice: There is an easy fix. To avoid needless litigation, simply develop a system that notifies employees every time you apply FMLA leave to an absence. Make it part of the routine by including it on the checklist you use for FMLA.
Recent case: Susan Downey worked for a sheriff’s department in the crime lab and was eligible for FMLA leave. A year earlier, she hurt her knee at work. Then she injured her neck and shoulder in a car accident. Downey took paid leave to recover. Her supervisor also designated the time as FMLA leave, and let her know. That left her with just 52 more FMLA hours for the year.
Then Downey hurt her knee again and had surgery. This time, her supervisor ran out her FMLA leave but did not tell her he was applying it to her absence.
When Downey returned to work, she was reassigned to a new position that did not provide overtime pay or the use of a car. She argued that it was not a return to the same or an equivalent position, as the FMLA requires. But her employer said she had used up all her FMLA leave, plus more time, and therefore wasn’t technically entitled to reinstatement at all.
She sued, alleging that if she had known she was using up the last of her FMLA leave, she could have postponed the surgery and continued working in pain. A jury awarded damages to Downey.
The sheriff’s department appealed, arguing that the regulation that says employees must be notified was invalid because it gives employees greater rights than thegrants.
The court said the regulation was valid, but that the employee must show she was harmed by the lack of notice. Downey did just that, showing she could have continued to work until she had accumulated more FMLA hours. The court upheld the jury’s award of lost back and future pay. (Downey v. Strain, No. 06-30613, 5th Cir., 2007)
Final note: A simple thing like not telling Downey she was using FMLA time meant she pocketed nearly $30,000. Her attorneys received far more.
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