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Employers trip over FMLA basics

April 22nd, 2013  |  Lorene Park

Most employers know whether they are covered by the Family and Medical Leave Act (FMLA) and that the Act requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave in a year in certain circumstances (e.g., the birth of a child, or to deal with a serious illness). If you do not, consulting the Department of Labor’s (DOL) online fact sheet is a good start. Even employers that know about notice, eligibility, certification, and other FMLA basics can make costly mistakes. Learn from these examples and avoid your own missteps.


Employers need to fully understand eligibility requirements and communicate them clearly to employees. Indeed, a federal district court in Texas ruled that an employee’s detrimental reliance on her employer’s mistaken acknowledgement that she was eligible for FMLA leave could estop the employer from asserting that she was not covered by the Act (Allen v MidSouth Bank, No. H-12-1618, February 25, 2013). A federal court in Colorado refused to dismiss an FMLA claim by an employee with recurring kidney stones who exhausted her FMLA leave and was technically no longer eligible (Bourne v Exempla, Inc, No. 12-cv-01477-PAB-BNB, March 27, 2013). Her supervisor kept granting leave without notifying her that she did not qualify under the FMLA. Generally, an employer must notify an employee of FMLA eligibility within five days of receiving notice of the employee’s intent to take leave.

One issue that has not been settled is whether a pre-FMLA eligible employee is entitled to some FMLA protections after notifying an employer of plans to take medical leave once eligible. For example, a federal court in Tennessee declined to follow another circuit’s conflicting precedent and dismissed the FMLA claims of a pre-FMLA eligible employee who had cancer, and who was fired after she told her employer of her post-eligible plans to take leave to undergo surgery (Dunn v Chattanooga Publishing Co, No. 1:12-CV-252, January 14, 2013). Stay tuned for further developments on this issue. Until the law is settled, err on the side of caution.

Notice of need for leave

To be entitled to FMLA protections, an employee must give the employer notice of the need for leave. Under DOL regulations, when timing is not foreseeable, notice should be given “as soon as practicable under the facts.” This requirement frequently crops up in litigation; employers are wise to take a broad view of what constitutes notice. For example, courts may find an employer had notice if an employee previously took leave for an ongoing condition; asks about medical leave; or has a known health condition and is seen having symptoms at work. A federal court in South Dakota recently found an employer had notice where it knew an employee had neck pain and headaches and a supervisor observed her lightheadedness and sent her to the emergency room (Jones v Bracco Ltd Partnership, No. 11-4117-KES, February 26, 2013).

Exercising caution by taking a broad view of notice does not mean an employer cannot require employees to follow call-in or other procedures for absences. For example, the Eighth Circuit affirmed the dismissal of an employee’s FMLA claims because she missed a month of work due to health issues but failed to give adequate notice of her need for FMLA leave (Bosley v Cargill Meat Solutions Corp, No. 12-1290, February 5, 2013). The attendance policy included a call-in procedure for absences and she knew of the system, which she had used many times. To the court, her vague communications through a coworker, who told a supervisor the employee was “sick,” fell short of FMLA notice.

Medical certification

The FMLA permits an employer to ask an employee to submit a medical certification showing the need for leave and the employee has 15 days to do so. If the certification is incomplete, the employer must provide an opportunity to cure deficiencies. Whether a certification is sufficient is frequently disputed in litigation. For example, a federal court in Michigan ruled that an employer did not unlawfully deny leave for an employee’s neck pain (and her interference and retaliation claims failed) because the only FMLA certification she provided before being fired for violating the attendance policy indicated her absences were due to a hand condition that did not prevent her from doing her job (Clum v Jackson National Life Insurance Company, No. 11-cv-10505, February 22, 2013). Employers can obtain DOL certification forms online for an employee’s  and for an employee’s family member’s serious health condition, along with other FMLA forms.


After FMLA leave, an employee is entitled to return to the same position held when leave commenced, or to an equivalent position with equivalent benefits, pay and other terms and conditions of employment. However, before reinstatement, an employer may require a doctor’s note indicating that the employee is fit to return to their job. The note need only be a simple statement that the employee is able to return, but an employer concerned about the adequacy of the fitness-for-work statement may seek clarification from the health care provider (see, e.g., Chaney v Providence Health Care, Wash SCt, No. 87056-0, February 21, 2013). Note that a “key employee” who has been given proper notice of that designation is not entitled to reinstatement to the same position unless the employer has waived the right to impose those restrictions (see, e.g., Lane v Grant County, DWash, No. CV-11-309-RHW, January 17, 2013).

Other provisions

Obviously there are many other ways in which employers can make basic mistakes when dealing with their FMLA rights and responsibilities. For example, it is a bad idea to place an employee on a performance improvement plan shortly after his or her return from FMLA leave because that could easily form the basis of an FMLA retaliation claim. Employers also need to keep up with their recordkeeping, notice and posting requirements (employers must display a poster summarizing the FMLA’s major provisions and how to file a complaint). The DOL provides a plethora of information online, including required notices and recent developments (e.g., a final rule took effect March 8, 2013 with respect to military families).

The important thing is to stay informed and to make sure that the decisionmakers in your organization mind their p’s and q’s with respect to the Act’s basic requirements. Using the above examples of what NOT to do and why it matters may help in that regard.