Employees are responsible for following FMLA rules and regulations as well as employers.  The following are mistakes which can result in your request for FMLA leave being delayed or denied:

• Failing to provide your employer at least 30 days notice of a foreseeable leave (e.g. birth of a child, elective surgery)
• Failing to return employer forms and medical certification (if required) in a timely manner
• Failing to periodically report status to employer during leave
• Failing to be aware of the number of days of permitted leave to assure return from leave on time.  (The employer does not have to remind you while you are on leave that you only have so many days left or your leave will expire on a certain date.  It is only obligated to tell you at the beginning of your leave how many days you have.)
• Failing to obtain timely clearance to return to work certificate from physician (if required)
• Failing to pay any required health insurance co-pays during leave

Avoiding these mistakes will lessen the chances of any problems during your leave and smooth your transition between leave and back to work.

Employers may voluntarily extend legal rights to employees which the employees would not otherwise be entitled to.  Employers of less than 50 persons may provide Family & Medical Leave because they believe it is the right thing to do for their employees.  More often, employers of less than 50 persons include Family & Medical Leave Act policies and terminology in handbooks because they cut and paste from another handbook or download an online template without an understanding of the legal implications.

If your company is a small employer, but has an FMLA leave policy printed in its handbook, you may be entitled to leave and the FMLA’s protection against interference and retaliation based on a legal principle called “estoppel.”  Estoppel simply means that an employer cannot say one thing and do another.  If the employer grants leave, the employer cannot thereafter deny a return to one’s job at the end of twelve weeks claiming the FMLA never applied.  The employer is prevented or “estopped” from arguing it is not a covered employer because of its earlier conduct.

However, the courts generally require reliance by the employee on the employer’s conduct before they will grant relief on an estoppel theory.  Consider the following examples:  Case #1 - Jenny Jones wishes to take leave to have elective surgery performed.  She reads her employee handbook and sees there is an FMLA leave policy.  However, the employer denies leave and tells her the policy was included in the handbook in error.  Under these circumstances, Jenny probably does not have a good case against her employer on an estoppel theory because she has not yet acted in reliance on any promise made by the employer.  It is unlikely anyone accepts a job based on the existence of FMLA leave and an employer is free to change its policies at any time. 

Case #2 – Let’s change the facts a little.  The employer grants Jenny FMLA leave.  After her surgery and while she is still recuperating, her employer calls her and informs her he needs her at work the next day.  If she does not return to work, she no longer has a job.  Jenny fails to return to work and is fired.  Now Jenny has a strong case against her employer.  She relied on the promised leave to undergo the surgery and have up to twelve weeks to recuperate.  The employer cannot change the rules and force her to return to work before the leave expires or fire her for not doing so. 

Because everyone is an individual and no one’s medical leave is quite the same, FMLA cases are fact sensitive.  Courts are reluctant to impose laws on employers who would not otherwise have to comply with them and will insist on employees demonstrating reliance on the employer’s conduct and harm resulting from it.  Small employers who do not wish to subject themselves to the FMLA should review their handbooks and remove any unintentionally included leave policy before it becomes a far more expensive error to fix.  And remember, employers of 50 or more persons must comply with the FMLA whether they like it or not.

How many FMLA leave days do I have?  Let me count the ways.  (My apologies to Emily Dickinson)

If on the calendar method, then twelve weeks it be within the year

of unpaid leave, just so we’re clear.

If by the rolling method, I look back one year from the day I’m in

and count all my FMLA leave days that have already been.

If I still have some of the 12 weeks left on the day I’m complaining,

then my employer must give me the time remaining.

If by the “anniversary method” it is decided,

then by my date of employment the 12 weeks is divided.

The rolling method is the employer’s most common plan of attack

It prevents employees from having two 12-week periods back-to-back.

Who gets to choose?  Well, the employer, at first, in a handbook or policy

provided in advance to all the employees.

If nothing is written, then the employee is free

to chose the method which suits him most favorably.

So when counting FMLA leave days, whether employer or employee,

you’ll want to keep track and of lawsuits be free.

The federal Family & Medical Leave Act of 1993 established the right for certain employees to take up to 12 weeks of unpaid leave in a 12-month period due to special family or medical circumstances. Unfortunately, many employers and employees remain unaware of the FMLA’s protection and requirements. Hopefully, this blog series will dispel some of the confusion.

First, not every employee is eligible for FMLA leave. If your company employs less than 50 employees at your facility or within 75 miles of where you work, you are not eligible. If you have not been employed by the company for at least a year, or you have not worked 1250 hours for the company in the last year, you are not eligible. There are some ways employers with less than 50 employees may become covered employers, but I’ll leave that for another blog. Generally, the multitudes who work for small employers will not gain any protection from the FMLA.

If you do work for a covered employer and meet the time requirements, then FMLA leave is available to you for the following special circumstances:

• Birth or adoption of a child
• Foster care placement of a child
• To care for an immediate family member (child, spouse or parent) with a serious medical condition
• To seek treatment for one’s own serious medical condition.

The FMLA defines a “serious health condition” very broadly. Being out sick for more than three days for a condition requiring a doctor’s care is covered. Also, conditions that are chronic or require periodic time off for treatment like dialysis or physical therapy are covered. FMLA leave does not have to be taken all at once, or even in days or weeks. Intermittent FMLA leave may be used in increments as small as one hour enabling an employee to attend appointments for treatment of covered conditions and miss an hour or so of the workday on an ongoing basis.

The FMLA has been around long enough that covered employers should know who they are and have forms and procedures to handle requests for leave. An employee does not have to mention the FMLA when asking for time off, but should give the employer enough information to be aware that the FMLA may be applicable. Asking for a pregnancy leave gives the employer adequate notice. Simply calling out sick does not. A sick or injured employee may have someone else communicate the information and request leave on his or her behalf. Employees should give the employer as much advance notice as possible. A minimum of thirty days notice is required if the employee is aware of his or her intent to request leave, for example, in the case of pregnancy or an elective surgery.

Once the employer is aware of a potential leave situation, the employer must designate the leave as FMLA leave and give the employee written notice of the employee’s FMLA rights and obligations within 48 hours. Often, employers forget this requirement and it may result in the employee being entitled to extended leave. Employers may ask the employee to complete and return a physician certification documenting the serious medical condition. Employers may ask employees (or someone on their behalf) to regularly report their status while on leave. Employers may also require an employee to provide a doctor’s note clearing the employee to return to work. If the employee fulfills these requirements, then the employer must allow the employee to return to his job or a similar position with the same pay and benefits at the end of the leave.

It is illegal for an employer to interfere with the employee’s right to leave by delaying it or denying it altogether. It is also illegal for an employer to retaliate against an employee for requesting or taking leave. In the next few blogs, I’ll examine the most common situations in which the process can break down and ways to ensure your rights are protected.