Do your employees misunderstand your leave policies?
November 25, 2008 by Bill MeltzerPosted in: Compliance, Leave policies, Special Report
A famous coach once said, “It’s not what you tell your players, it’s what they hear.”
The same is true of about what you and your supervisors tell employees about FMLA and other leave policies. Even minor misunderstandings can cause major legal headaches.
Leave isn’t guaranteed
Some employees assume they’re entitled to extended paid leave or FMLA if they simply ask for it. Of course, it’s not that easy. Most organizations require written requests and have an approval process.
Here’s a recent case (Reed v. The Lear Corp.) of a classic communication breakdown that can land any company in court:
An employee strained his back, and missed an extended stretch of work. Shortly after the injury, he contacted his employer. He asked an assistant department head for leave.
The employee was told he was entitled to “provisional” FMLA leave while he used up his paid time off.
Unfortunately, the term “provisional leave” wasn’t explained to the employee, nor did he ask for clarification.
The worker took the term to mean he could take off as much time as he needed and then provide the necessary medical certification upon his return. Meanwhile, the employee’s supervisor grew anxious – and then furious – as the absences dragged on. The absences were marked unexcused, and the employee was fired for attendance policy violations.
Provided inaccurate information
The employee retroactively applied for FMLA. The request was denied. He then filed a wrongful termination lawsuit. The man claimed the company gave him the wrong info about the workings of its FMLA certification procedures.
He also argued that the days he missed were covered by FMLA and shouldn’t have counted against his attendance record. The company countered by saying the manager who told the worker he could take “provisional” leave had no authority to grant it. The firm pointed out all employees had received written information about the company’s leave policies.
After a lengthy court battle, the employer finally won the case. Even so, a lot of time and money was spent cleaning up an avoidable mess.
Tags: FMLA, Leave policies
November 26th, 2008 at 1:51 pm
Unfortunately many supervisors are not familiar with FMLA, that is why we instruct them to refer an employee to HR, so things are not misunderstood.
November 26th, 2008 at 2:14 pm
How unfortunate. The supervisor should have been repremanded. He should NEVER have given out information concerning FMLA or antype of LOA without first checking with HR. This company had to pay out solely on the information that was given to the employee by the Supervisor. If anything, he should have told the employee to contact the HR department so that things can be taken care of. I get several questions such as this from my supervisors every month. I am always glad that they thought to come to me first than give out information to the employee without all the facts.
November 26th, 2008 at 2:52 pm
I’m a little surprised the employer won (don’t get me wrong–I’m glad). The only thing I can think of is that the employer waited until after the 60 days of FMLA would be up for that employee thus fulfilling the legal leave time prior to terminating the employment relationship. The employee should have been notified in writing of their leave. I have a form letter I use that hits up the key points of FMLA/CFRA leave and notifies the employee of the rights and requirements for leave. It puts the ball back into the employee’s court. Coupling the letter with education to both Managers and those they supervise know what needs to be done and follow it.
I did have someone try to apply for intermittent Kin Care though–they wanted to use sick time to cover their time away from work where they would be caring for their almost-year old child. Only problem with their request was that the child was/is perfectly healthy!
November 26th, 2008 at 3:11 pm
Many well-meaning managers just don’t know company policy as well as they should. Frankly, while I understand why the employer won, I believe they should have been penalized for giving erroneous information to the employee (even though they were penalized plenty with the cost of litigation). I speak regularly at workshops aimed at women who are trying to re-enter the workplace after having been off for an extended time due to (typically) negative circumstances. One thing I always stress: Most jobs hand out some kind of employee handbook along with the new hire paperwork. ‘You are required to sign an acknowledgement. Take the time to read what you’ve agreed to!’
November 26th, 2008 at 4:28 pm
I am surprised that the company won. Of course, for this to end up in court, the EEOC must have investigated and found just cause to proceed. The company’s argument that ALL employees received written information and therefore should have known the procedure is weak, when you consider that the Assistant Department Head did not even understand the procedure.
From the employees side, the law requires that the employee provide at least 30 days notice to the employer if it is forseeable, or as much notice as may be practicable if not forseeable. The employee does not have to refer to the leave as FMLA, but the company is expected to know the law and recognize when an employee may be covered.
The problem is that many supervisors fail to realize that they are agents for the company and that the government expects that once an employee indicates that they need time off for an FMLA protected reason to the company (the supervisor), that the time window for the employer notification starts. In that time, the employer needs to let the employee know if they are eligible for FMLA (meet the year of employment and the 1250 hours in the last year, whether they are a key employee or whether their absence would present a “substantial and grievous economic injury” to the company). If the employee is eligible, the employer can request that the employee provide medical certification. The employee has at least 15 days from the notification to provide this certification. If the company fails to inform the employee of their eligibility status, then the employee is able to assume they are protected by the FMLA protections. The company currently has two days to provide the employee with this notification (but I understand that this notice period will be going extended to five days starting next year).
It is truly unfortunate that the government and employers refers to the act as the “Family Medical Leave Act.” It would have been so much better if they called it “Workers Medical Protection Act.” The name misleads so many people, because it does not create a new form of leave.
December 2nd, 2008 at 1:03 pm
Communication is the key and it seems sadly lacking in this case. As an employee who has just returned from a seven week sick leave myself I understand the importance of communicating with my employer. My employer is not covered by FMLA but they always try to accomondate an employee out on disability. I spoke with my employer at every step of my recovery. I gave them updates after I was discharged from the hospital and after each of my doctor visits. But, my employer also reached out to me.
I feel bad that the company had to spend money on their litigation but I also feel for the employee who was given incorrect information. It states that the employer got madder as time went on but doesn’t say if he was in touch with the employee.
I feel this could have been handled better and maybe the employee would still have a job and the employer wouldn’t be out the money spent.