Recalled employee may be eligible for FMLA leave

When employees are temporarily laid off with the right to return during a recall, all the regular rules for FMLA time off apply on the day of the recall. That’s because a break in service doesn’t destroy the employee’s eligibility.

If the employee worked for the company for more than a year when placed on layoff status, he or she will still have a year’s service when called back.

Recent case: Edwin Schley was laid off from his position with Gloucester Refrigerated Warehouse. At the time, he was eligible for FMLA leave because he had worked for the company for more than one year, and had more than 1,250 hours of service in the last year.

Schley, who had carpal tunnel syndrome and high blood pressure, saw his doctor for treatment on Oct. 11, about one week after being laid off. He was scheduled for blood work the following day. Meanwhile, the company issued a recall for Oct. 12, but Schley said he didn’t get the notice.

Schley went to his doctor’s appointment and was fired because he didn’t show for work. He sued, alleging interference with his right to FMLA leave.


The court sent the case to trial even though his employer said Schley never said he had an appointment. The court reasoned that Schley was only required to give his employer notice that he wanted to take FMLA leave if he knew he had been recalled—and he claimed he didn’t know.

A jury will decide whom to believe. (Schley v. Gloucester Refrigerated Warehouse, No. 05-3270, DC NJ, 2007)

Final note: The employer could have saved itself time and legal fees by making sure Schley actually received the recall notice. It may now appear to the jury as if the company was looking for an excuse to permanently terminate Schley.