Professional Service Agreement

Employer Violated FMLA for Failure to Provide Calculation of When Leave Expired

January 23, 2017

In a case reminding employers of their obligation to notify employees about their Family and Medical Leave Act (FMLA) rights, a federal court has ruled that an employer violated the FMLA when it terminated an employee without providing her notice that her modified return-to-work date exceeded her available leave.

In September 2012, Employee requested FMLA leave, initially stating on her designation form that her return-to-work date was “unknown.” Within weeks of submitting her form, Employee provided an updated return-to-work date of April 2013 — well beyond the 12-week maximum leave available under the FMLA. The extended leave was required because Employee had scheduled two surgeries, one in November and the second in January.

When Employee informed Employer about her modified return-to-work date, Employer did not provide her with an updated calculation of leave or inform her when her leave would expire. After Employee exhausted her FMLA leave, Employer informed her that she exceeded the amount of available time and terminated her. Employee filed a lawsuit alleging Employer did not provide her with proper notice after she informed it about a change in her status.

The court agreed with Employee. The court noted that an employer has the burden of calculating an employee’s leave allowance and informing the employee if a change in status alters the available leave. Critically, the court said, Employer did not inform Employee what specific amount of time was available to her, did not provide a change-in-designation notice after receiving the doctor’s note, and did not communicate the “critical information” that the FMLA would not protect all of the requested leave.

In the case of a status change, an employer should inform the employee of any remaining available leave and communicate any consequences of the updated designation. Moreover, the notice should provide sufficient information for an employee to make adequately informed decisions about how to structure leave. Although Employee’s leave request would have exceeded FMLA protections and she received 12 weeks of protected leave, Employee alleged she could have scheduled her surgeries to allow her to return to work within the required time. The court agreed with Employee’s allegation.

Notice and process are critical in administering leave. Prudent employers must review carefully whether proper notice is provided before terminating an individual for exhaustion of available leave or retroactively designating leave.