By now most employers are familiar with the Family & Medical Leave Act (FMLA), which allows employees of larger employers to take unpaid time off for various reasons (mainly medical). Because the employee's job is protected while on leave, it's important for employers to understand when time off counts against the maximum and when it doesn't.
A recent case in the 9th Circuit Court of Appeal held that the use of FMLA time (against the maximum) is not automatic. In that case, the employee asked for two weeks vacation to care for her father. She didn't ask for FMLA time, and the company didn't treat the time as part of her protected time off. When she hadn't returned after four weeks, she was let go for abandoning the job. She sued under FMLA, claiming the company should have "automatically" put her on FMLA leave. The 9th Circuit disagreed, saying it's perfectly OK for an employee to save their time off under FMLA and just take the time as vacation. While the company has an obligation to ask whether the employee's leave is for FMLA purposes, this employer did ask her twice whether she needed more time, and twice she said no. So the jury's verdict for the employer held up.
The lesson for employers is to have clear communication about leave, making sure employees understand the difference between vacation time (subject to the employer's rules) and protected leave under FMLA (which could include the same vacation time). And to make sure that there is a clear understanding when the employee's leave time will count against their annual limit.
Also, beware of firing employees who overstay their allotment of leave. In another recent case, a California appeals court held that giving a pregnant employee more time off than the law requires might be considered a reasonable accommodation for a disability. That employer was surprised to learn that firing the employee when she failed to return after her leave of four months was over was the same as wrongful termination!
In today's suit-happy environment, employers who want to avoid risk should always get an attorney's advice before firing anyone for any reason.
Storrow can be reached at [email protected]
A recent case in the 9th Circuit Court of Appeal held that the use of FMLA time (against the maximum) is not automatic. In that case, the employee asked for two weeks vacation to care for her father. She didn't ask for FMLA time, and the company didn't treat the time as part of her protected time off. When she hadn't returned after four weeks, she was let go for abandoning the job. She sued under FMLA, claiming the company should have "automatically" put her on FMLA leave. The 9th Circuit disagreed, saying it's perfectly OK for an employee to save their time off under FMLA and just take the time as vacation. While the company has an obligation to ask whether the employee's leave is for FMLA purposes, this employer did ask her twice whether she needed more time, and twice she said no. So the jury's verdict for the employer held up.
The lesson for employers is to have clear communication about leave, making sure employees understand the difference between vacation time (subject to the employer's rules) and protected leave under FMLA (which could include the same vacation time). And to make sure that there is a clear understanding when the employee's leave time will count against their annual limit.
Also, beware of firing employees who overstay their allotment of leave. In another recent case, a California appeals court held that giving a pregnant employee more time off than the law requires might be considered a reasonable accommodation for a disability. That employer was surprised to learn that firing the employee when she failed to return after her leave of four months was over was the same as wrongful termination!
In today's suit-happy environment, employers who want to avoid risk should always get an attorney's advice before firing anyone for any reason.
Storrow can be reached at [email protected]