In golf, they call it a mulligan. Kids call it a "do-over." And in the world ofAct ( ) administration, it can be legal to do an "about-face" on your decision about employee eligibility.
When Iva Wood, a 10-year employee of a New York non-profit group, requestedfor stress and depression, the organization gave her a form indicating that she was eligible for FMLA leave. The form noted, however, that she was considered a "key employee" who, under , might not be guaranteed reinstatement to her job.
The group hired a replacement and refused to reinstate Wood after her leave ended. She sued, but the court said she wasn't entitled to any protection under the FMLA. Reason: She hadn't worked the requisite 1,250 hours in the previous 12 months to be eligible for FMLA leave.
Wood appealed, pointing to a Labor Department regulation that said an employer can't challenge a worker's eligibility for FMLA leave if the employer had already approved it.
But the 2nd Circuit rejected her appeal and struck down that Labor regulation, just as the 7th and 8th Circuits had done. The court said Labor's regulation unfairly expands the scope of eligibility because it forces companies to treat workers as eligible for FMLA, even though they haven't met the 12-month/1,250-hour requirement. (Woodford v. Community Action of Greene County Inc., No. 00-7265, 2nd Cir., 2001)
Advice: This case shows that it's possible to reverse course if you've erroneously told a worker that she's eligible for FMLA leave. To avoid the mix-up in the first place, it's important to maintain and enforce an FMLA-related recordkeeping policy so you can quickly and accurately determine if an employee is eligible for leave. As this ruling said, "proper and prompt notice of eligibility is crucial to furthering the FMLA's purpose of balancing family needs with workplace demands." And under some circumstances, you could be bound by your mistake.
- It's up to you to ensure employees know how much FMLA leave they have left
- Consider FMLA before firing for attendance
- Track all efforts to accommodate disabilities
- Minutes—not just hours—count when figuring FMLA eligibility
- Beware refusing to rehire new mom; it could be sex discrimination under Ohio law