Sometimes it’s obvious that an employee will miss much more work than her available leave can cover. When that happens, provide her with all the necessary notices about how much leave she has used and when it expires.
Don’t assume she will know her leave status. And don’t let wishful thinking lead you to avoid the issue by assuming she won’t ask for her job back when she’s finally well enough to work.
Recent case: Maggie worked as a legal assistant for a law firm for 12 years and was eligible for various leave programs.
Maggie suddenly became ill when she acquired a drug-resistant bacterial infection. She had to have surgery and was out on leave (including) to receive continuing care for about a year after she received her initial diagnosis.
She kept in touch with HR. Then, when she told the firm she would soon be ready to return to work, she learned that she was being terminated.
She sued, alleging that she should have been informed when herleave ended and whether she had used up other available leave. The law firm argued that she had no right to reinstatement since she clearly had been out more than 12 weeks.
But the court said the case could move to the discovery phase, where Maggie can demand information about how all her leave had been applied. Because the employer never informed her that she was out of FMLA leave, it may even be possible that she had not taken her full allotment. (Baker v. Goldberg Segalla, No. 16-CV-613, WD NY, 2017)