When employees take leave to deal with serious health conditions, inform them that you plan to charge that time against their allotment of unpaid
If you fail to do so—and the employee later exhausts her leave and loses a benefit, such as reinstatement—it will be relatively easy for her to sue and show she was harmed by the lack of notice.
Recent case: Susan Downey, a city crime lab employee, took leave to recover from a knee injury. Her boss designated the time as leave and let her know. That left her with just 52 more FMLA hours for the year.
She hurt her knee again and underwent surgery. The boss applied this second leave to FMLA, but didn’t tell her. When Downey returned, she was reassigned to a job that didn’t provide overtime. She sued under the FMLA, arguing that she wasn’t returned to the same or equivalent job following FMLA leave. (She said she would have delayed the surgery if she thought it would use up FMLA hours.)
The employer argued that she’d used all her FMLA leave, so she wasn’t entitled to reinstatement.
The court sided with Downey—granting her $30,000 in damages—because she was able to show that she was harmed by the lack of notice. (Downey v. Strain, No. 06-30613, 5th Cir., 2007)
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.
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