Clear Communication Necessary When Approving FMLA Leave
In a recent Sixth Circuit Court of Appeals court case, an employee was awarded over $200,000 in damages because the employer failed to provide clear notice of FMLA calculation and return. While the employer provided ample confirmation of approved FMLA leave, there was “confusion as to when an employee should return to work after his leave." This simple step, among many when administering FMLA leaves, proved costly for this employer and serves as a reminder for all that FMLA leaves should be administered carefully and thoroughly.
The case involves Carl Thom Jr. who worked for American Standard Inc. as a Molder in Tiffin, Ohio, from July 1969 until he was discharged on June 17, 2005. Because of a non work-related shoulder injury that required surgery, Thom requested FMLA leave from April 27, 2005, until June 27, 2005. American Standard granted Thom’s request for FMLA leave and confirmed this time period in writing, the only company document setting out a return-to-work date. Thom’s doctor set June 13 as the probable date for Thom’s return to unrestricted work.
Following his surgery, Thom began recovering faster than expected by his doctor. His doctor provided him with a note releasing him to light duty beginning May 31 and to full duty on June 13. As a result, Thom attempted to return to work on May 31, which was before the expiration of his approved FMLA leave. He was not allowed to return to work at that time because American Standard did not permit employees with non-work related injuries to perform light duty work temporarily after FMLA leave.
On June 14, the company contacted Thom to ask why he had not returned to work the previous day. Thom explained that he was suffering from increased pain and would return to work on June 27, as originally scheduled. Thom received a doctor's note explaining his condition and delivered it to the company on June 18. When he delivered the doctor's note, he was informed that each day between June 13 and June 17 was an unexcused absence and, consequently, his employment was terminated by American Standard.
FMLA Calculation Methods
Under the FMLA, employers are “permitted to choose any one of four methods for determining the ‘12-month period’ in which the 12 weeks of leave entitlement occurs.” One such method is the "rolling” method, which calculates an employee's leave year “backward from the date an employee uses any FMLA leave." The "calendar" method is another way to calculate leave, and provides for 12 work weeks of leave per calendar year. In this case, under the calendar method, Thom’s FMLA entitlement would have run through June 27, as the company originally instructed him. However, the company's position was that it used a "rolling" method and, therefore, Thom’s FMLA leave was exhausted before his employment was terminated.
Thom claimed that American Standard failed to adequately notify him of its method for calculating FMLA leave because it did not inform him in writing or otherwise that company policy was to use a “rolling” method of leave calculation. American Standard claimed that it had always used the “rolling” method for calculating FMLA leave and that Thom should have known this fact.
The district court granted summary judgment in favor of Thom on his claim of FMLA interference, concluding that an employer is required to take affirmative steps to inform employees of its selected method for calculating leave. The court held that "employers should inform their employees in writing of which method they will use to calculate the FMLA leave year" and went on to say that clear written notice ". . . is consistent with the principles of fairness and general clarity." As consequence, the district court granted summary judgment for Thom and awarded him $99,960 in attorney's fees, $2,732 in costs, and $104,354 in back pay.
This case serves as another reminder that employers should strictly follow the suggested points of consideration and communication when approving an FMLA leave. Whether using the suggested Department of Labor (DOL) Notice of Eligibility and Rights and Responsibilities document or another form of communication, employers must “fairly” and “clearly” inform employees of their entitled leave and employer calculation of leave taken. If you need help administering or determining leaves, please contact our office.