Employer’s mistake doesn’t extend FMLA leave

It’s not always easy to calculate exactly how much FMLA leave an employee has coming. Rest assured, though: If you make a mistake, you can fix it. Just be sure to fix it as soon as you discover the error so your mistake doesn’t harm the employee.

Here’s what to do: As soon as you realize you incorrectly calculated the FMLA leave, let the employee know. You also should give her the new end date if she is currently out on FMLA leave.

Recent case: Patricia Durose, a casino slot supervisor, became ill and took a 53-day FMLA leave. A month after returning to work, she hurt herself and took more FMLA time. The casino told her she had until April 29, but sent her a letter that incorrectly listed May 29 as the date on which her FMLA leave would expire.

Grand Casino immediately informed Durose it had made a mistake and that she was expected back at the end of April. Durose then requested more time, but the casino turned her down.

Durose filed suit under the FMLA, alleging that Grand Casino’s inadvertent misstatement about her FMLA leave expiration date gave her the right to additional protected leave. The court dismissed the case, reasoning that a mistake didn’t automatically entitle Durose to more time than the law allowed. (Durose v. Grand Casino of Mississippi Inc., No. 06-61109, 5th Cir., 2007)

Note: You can’t, of course, purposely misstate when FMLA leave ends and then fire the employee for not returning after her 12 weeks have expired.

Time is also of the essence. If your mistake harms the employee, she may have a case. For example, if Durose had relied on the error when scheduling surgery and hadn’t been able to change the date, she may have won the case.

Final note: If the employee is disabled under the ADA, she may be entitled to more time off as a reasonable accommodation.