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Not sure employee is eligible for FMLA leave? Play it safe and assume she is

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in FMLA Guidelines,Human Resources

Employees don’t have to use any particular magic words to put their employers on notice that they may need FMLA leave. Instead, once a supervisor or manager has reason to believe the employee may qualify for FMLA leave, the company is obligated to investigate.

Ignoring that obligation can be a big mistake. That’s especially true if an employee’s diagnostic appointments end up being counted as absences under a no-fault attendance plan, resulting in discipline.

Recent case: Lynn worked for FedEx for a decade before being fired for exceeding her absence allotment under the company’s no-fault attendance plan. She sued, alleging that her last three absences should have been covered by the FMLA. Therefore, she said, they should not have been counted against her.

The company insisted that Lynn never notified anyone that her absences might be covered by the FMLA because she suffered from a serious health condition.

But Lynn testified that she was open with her boss about medical problems she was having. She told the supervisor that she had a lump on her thyroid and had to undergo blood tests and biopsies to determine what the problem was. Before her third absence, she explained that she was going to see a surgeon. She then returned to work with her body badly swollen and her neck bandaged.

Lynn also specifically asked if her appointments were covered by the FMLA. Each time, she was told that they were not. Her supervisor never provided FMLA forms to give her medical providers. Thus she never had a chance to show her absences were for FMLA-covered matters.

That persuaded the jury that decided Lynn’s case. It awarded her over $225,000.

Federal Express appealed the jury verdict, arguing that because Lynn was able to return to work after each appointment, she wasn’t seriously ill.

The appeals court disagreed. It said FedEx had plenty of notice that Lynn’s ailment might be covered by the FMLA. Because it was on notice, the burden shifted to FedEx to let Lynn know her rights and give her an opportunity to get the proper medical certification. (Wai v. Federal Express, No. 10-14972, 11th Cir., 2012)

Final note: The court did order the jury award reduced to around $100,000, mainly based on how poorly Lynn presented her damage evidence. However, the court also said Lynn was entitled to reinstatement somewhere within the company at a comparable pay rate and with her old benefits.

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