Ignorance and Inconsistency: The Two-Step Path to Court

Nobody ever said complying with federal employment laws would be easy or inexpensive. It also isn’t optional.

As this case shows, providing an employee with up to 12 weeks of FMLA leave and continuing to cover your share of an employee’s health insurance premiums can be costly and disruptive. But ignoring your FMLA obligations—or trying to find creative ways around it—can be even more costly. And allowing one person (in this case, the owner) to make arbitrary decisions about who gets leave and who doesn’t is never a good idea.

Case in Point: Melinda drove a truck for a construction company. It provided medical insurance but maintained an usually casual disablity leave policy. Essentially, it was up to the owner to decide whether an employee would get time off. If the owners okayed a request, the employee would then be deemed in “layoff” status. The company included no FMLA information in its employee handbook.

When Melinda discovered she needed a hysterectomy, her doctor provided a note explaining the procedure and her need for time off to recuperate fully before operating heavy equipment. She gave the note along with a request for a medical leave to the owner, who simply wrote “No” on the request.

Melinda then had the surgery because no one told her the request had been denied. While recuperating, she learned that her health insurance had lapsed and that she’d been terminated. Her bills totaled more than $24,000. (Later, the owner would testify that he believed the doctor’s note was suspect and Melinda was abusing the company leave policy.)

Melinda fired off an FMLA lawsuit and won. The court said the company fired Melinda without giving her an opportunity to explain the certification. A jury awarded her more than $34,000 in damages. The judge then concluded the company, through the owner’s actions, willfully violated the FMLA and doubled the damages to $70,000. The judge said there’s no excuse for failing to understand that the FMLA provides job-protected leave with insurance coverage in place.

The court also ordered the company to pay Melinda one year’s earnings and the full cost of unpaid medical bills that would have been covered by the insurance policy. That put the total at $121,439.55. The judge also asked Melinda’s attorney to provide time records so that the employer can also pay her legal fees. (Hosler v. Jay Fulkroad & Sons, et al. MD PA)

3 lessons learned … without going to court

1.Make sure your higher ups (and lower downs) understand the law. Make sure that whoever is making the final leave decision understands the FMLA and the employer’s obligations to provide up to 12 weeks of unpaid FMLA leave with continued insurance coverage for eligible workers. Learn about the law at the DOL website.

2. Understand that employers have rights, too. You don’t have to blindly accept FMLA requests. If you are going to question an employee’s medical certification, the process is clearly outlined in the FMLA regulations. Employers can require and must pay for a second opinion. If the two certifications don’t agree, the employer can require and pay for a third, tie-breaking certification.

3. Understand that head-in-the-sand compliance is a sure path to court. In this case, the employer chose ignorance and paid a steep price.