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Spell out FMLA intermittent leave timing in handbook—or risk a million-dollar mistake

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in Employment Law,FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training

The 4th Circuit Court of Appeals has upheld a verdict of more than $1 million in an FMLA intermittent leave case involving a foreign adoption. The sad fact is that the employer could have avoided the entire problem by studying up on intermittent leave and adoption.

Here’s what the FMLA regulations say: Employers can require employees who are adopting a child to take any planned FMLA leave in one session. Intermittent leave is not guaranteed the way it is for other serious conditions that require periodic care.

And it makes sense. If new parents could take FMLA child-rearing leave intermittently, they could in effect create a part-time position for a half year or so rather than be forced to return in three months. And that would mean an additional three months of employer-sponsored health and other insurance coverage, plus return-to-work rights.

The regulations do say that if both employer and employee agree, the leave can be taken intermittently. The employer, though, has the final say.

Recent case:
James Dotson had worked for the pharmaceutical company Pfizer for many years when he and his wife began planning to adopt a baby girl from Russia. As they prepared for the adoption, Dotson kept his supervisor informed. He asked HR for leave to make two trips to Russia—trips required by the orphanage. HR told Dotson he could take the time, though no one used the words “intermittent leave.”

During the first trip, the Dotsons met their daughter-to-be. During the second, the couple picked her up and took her home.

A few weeks after returning with the baby, the company fired Dotson for bringing antibiotic samples to Russia as a gift for the orphanage.

He fired back with an FMLA interference and retaliation lawsuit. Apparently, the new family came across as sympathetic because a jury awarded them $331,429.25 on Dotson’s retaliation claim. The district court also awarded $333,305.25 in statutory liquidated damages, plus $375,000 in attorneys’ fees, bringing the tab to over a cool million.

The pharmaceutical company appealed and tried to argue that the new father couldn’t sue under the FMLA because he was never approved for intermittent FMLA leave. Pfizer noted that U.S. Department of Labor regulations say employers can make adoptive parents take all FMLA leave in a single block.

But the appeals court pointed out that those same regulations say employers and employees can agree to take adoption leave on an intermittent basis. Since the company never said Dotson couldn’t have intermittent leave, he was covered by the FMLA and could sue for retaliation and interference. The original awards stood. (Dotson v. Pfizer, No. 07-1920, 4th Cir., 2009)

Final note: To avoid this expensive mistake, make sure your employee handbook includes information on how to take adoption and childbirth/child-rearing leave. If you don’t want employees to take the leave intermittently, say so.

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